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STANDARD BUSINESS CONDITIONS, DELIVERY CONDITIONS AND TERMS OF PAYMENT

1 General – Area of application

(1) Our sales conditions apply exclusively to all of our deliveries – including future ones; conflicting conditions or conditions of the buyer which deviate from our sales conditions are not recognized unless their validity has been explicitly approved in writing. Our sales conditions also apply if we deliver the merchandise to the buyer without reservation in the knowledge of conflicting conditions or conditions of the buyer deviating from our sales conditions.

(2) All agreements made between us and the buyer to facilitate fulfillment of this contract are stipulated in writing in this contract.

(3) Our sales conditions apply only to companies in compliance with § 310 subsection 1 BGB (German Civil Code).

 

2 Offer – Offer documents

(1) Our offers are subject to change, provided that nothing else arises from the order confirmation.

(2) Orders and letters of acceptance require written confirmation in order to be legally effective. This applies in the same way for additions, subsidiary agreements and changes.

(3) If the order is used over our internet portal in which the purchaser goes through a multiple-level selection process, a contract is not concluded until we  confirm the order. The customer receives this in printable electronic form (by email or direct access from the online portal).

(4) Plans, drawings, illustrations, measurements, weights and reproductions as well as other performance data are then only binding if this is expressly assured in writing.

 

3 Samples, shapes, drawings, films, patterns, printing rollers, and other necessary tools required for the production of our products (collectively referred to as production tools)

(1) We retain rights of ownership and copyrights to illustrations, drawings, calculations, written documents, tools, samples, working models, graphic works and dummies.

(2) We remain the owners of manufacturing tools. This also applies if an interested party or purchaser is financially involved in the manufacture. The manufacturing tools shall be stored by us for the purchaser for 2 years at the most following delivery of the goods ordered.

(3) We reserve the right to resell items in the purchase order as samples or for advertising purposes.

 

4 Lump-sum compensation for damages following sampling / graphic work

If the purchaser acts otherwise after sampling or graphic work by us, he is obligated to pay us a lumpsum compensation amounting to 20% of the order value if he does not prove that the damage is lower. Further claims for compensation for damages or other claims are not affected.

 

5 Delivery, packaging, prices and payment terms

(1) Provided that it does not state otherwise in the order confirmation, delivery is agreed as “ex works” excluding packaging.

(2) We reserve the right to adjust our prices with regard to the interests of the purchaser if costs increase after conclusion of the contract, in particular on the basis of rises in staff costs or changes in material prices. We shall provide evidence of cost increases to the purchaser on request as soon as and as far as they occur.

(3) We reserve the right to deviate in amount from up to 10% for technical reasons.

(4) Unless otherwise agreed in writing, deliveries abroad are made against a letter of credit confirmed by a bank.

(5) Packaging, shipping costs, reproduction costs, drawings, plates, print rollers, sieves and other tools required for the production of advertising shall be billed separately.

(6) Transport and all other packaging in accordance with the “Verpackungsordnung” (packaging regulation) shall not be taken back; palettes are not included in this. The purchaser is obligated to ensure packaging is disposed of at his own cost.

(7) If the purchaser so desires, we shall cover the delivery with transport insurance; the purchaser carries the costs arising in this regard.

(8) Statutory value-added tax is not included in our prices; it shall be shown separately in the bill as the statutory amount on the billing date.

(9) Provided nothing else arises from the order confirmation, the purchase price (without deduction) is due within 30 days from the billing date. The statutory rules apply regarding the consequences of payment default.

(10) If the purchaser does not observe his payment obligations or if circumstances become known which put into question the purchaser’s credit-worthiness, the purchaser’s full residual debt shall become immediately payable. We are in this case entitled to demand advance payments or securities.

(11) The purchaser is only entitled to off-setting rights if his counterclaims are legally established, undisputed or recognised by us in writing. Besides that he is only authorised to exercise a right of retention insofar as his counterclaim is related to the same contractual relationship.

 

6 Delivery time

(1) The start of the delivery time specified by us presupp oses the clarification of all technical questions.

(2) Adherence to our delivery obligation also presupposes the punctual and correct fulfilment of the contractual responsibilities of the buyer. We reserve the right to a plea of non-performance.

(3) If the buyer is in default of acceptance or if he negligently violates any other duty to cooperate, we are entitled to demand reparation of the damage incurred, including any additional expenditure. We reserve the right to further contractual claims.

(4) If the conditions listed in subsection

(3) apply, the risk of an accidental loss or an accidental deterioration of the object of sale goes over to the buyer as soon as the buyer is in default of acceptance or in default of payment.

(5) We are not responsible in the case of force majeure (unforeseen facts and incidents which occur through no fault of our own, which also could not have been avoided with the diligence of a prudent businessman, in particular labour disputes, also with suppliers, war, fire, transport obstructions, lack of material, official measures, natural disasters, delivery from the supplier which is not on time and incorrect in spite of a congruent hedging transaction having been concluded), also in the case of bindingly agreed periods and deadlines. This also applies if they occur to our suppliers and their suppliers. They entitle us to postpone the delivery or performance for the duration of the obstruction, plus a suitable period or to rescind from the contract in full or in part because of the part not yet performed. An advance concession already made is to be taken into consideration when processing the contract.

(6) We are liable according to the statutory provisions insofar as the underlying purchase contract is a fixed transaction in the sense of § 286 Para. 2 No. 4 BGB (German Civil Code) or § 376 HGB (German Commercial Code). We are also liable according to the statutory provisions, provided that the purchaser is entitled to claim that his interest in the further fulfilment of the contract ceases to apply as a result of a delay in delivery which we are responsible for.

(7) We are further liable according to the statutory provisions, provided that the delay in delivery is related to an intentional or grossly negligent breach of contract which we are responsible for; fault by our representatives or persons assisting in the performance of obligations is attributed to us. If the delay in delivery is related to an intentional or grossly negligent breach of contract which we are responsible for, our liability to pay compensation for damages is limited to foreseeable, typically occurring damages.

(8) We are also liable according to the statutory provisions insofar as the delay in delivery which we are responsible for is related to the culpable breach of a material contract duty; in this case, the liability to pay compensation for damages is limited to foreseeable, typically occurring damages.

(9) We are moreover liable in the case of delay in delivery to a maximum amount of 5% of the value of the order.

 

7 Liability for defects

(1) Warranty claims of the buyer presuppose that the buyer has fulfilled his investigative requirements and his requirements to give notice of defects correctly in accordance with § 377 HGB (German Commercial Code).

(2) The merchandise of the seller can be perishable. Fresh products shall be delivered unless other terms have been agreed upon. The customer must consult us about the shelf life of the individual products. The minimum shelf life we state applies only if the goods are properly stored.

(3) Insofar as there is a defect in the thing purchased, the purchaser is entitled to subsequent performance in the form of a removal of the defect or to delivery of a new thing free from defects, as he chooses. In the case of removal of defects or replacement delivery we are obligated to carry all expenses necessary for the subsequent performance, in particular transport, call-out, work and material costs, insofar as these are not increased by the thing purchased being delivered to a place other than the place of performance.

(4) If this subsequent fulfillment of the contract is not successful, the buyer is entitled to choose whether to withdraw from the agreement or demand a reduction of the purchase price.

(5) We are liable according to the statutory provisions if the purchaser claims compensation for damages which are related to intent or gross negligence, including the intent or gross negligence of our representatives or persons assisting in the performance of obligations. Insofar as we are not at fault for any intentional breach of contract, the liability to pay compensation for damages is limited to foreseeable, typically occurring damages.

(6) We are liable according to the statutory provisions if we culpably breach a material contract duty. There is a material contract duty if the breach is of a duty, the fulfilment of which the purchaser relied upon and may also have relied upon. Also in this case the liability to pay compensation for damages is limited to foreseeable, typically occurring damages.

(7) Liability due to negligent injury to life, physical injury or injury to health remains unaffected; this also applies to the mandatory liability in accordance with the product liability law.

(8) Unless stipulated otherwise above, liability is excluded.

(9) The period of limitation on warranty claims is 12 months, calculated from the transfer of risk.

(10) The period of limitation in the case of a delivery regress in accordance with §§ 478, 479 BGB (German Civil Code) remains unaffected; it is five years, calculated from delivery of the defective goods.

(11) Only the purchaser is entitled to claims for defects against us and cannot be assigned to third parties.

 

8 Joint and several liability

(1) Liability to pay compensation for damages further than that envisaged in Clause 7 is – without taking the legal nature of the damages claimed for into consideration – excluded. This particularly applies to claims for damages resulting from negligence in contracting, other breaches of duty or claims for damages based on tort in accordance with § 823 BGB (German Civil Code).

(2) The limitation according to Paragraph 1 also applies insofar as the purchaser demands compensation for useless expenditure instead of compensation for damages.

(3) Providing our liability for damages has been excluded or limited, this also applies with regard to the personal liability for damages of our employees, workers, staff, representatives and other agents.

9 Securing retention of ownership

(1) The object of sale remains the property of the seller until complete payment is made as specified in the delivery agreement. In the case of a breach of contract by the buyer, particularly default of payment, we are entitled to take back the object of sale. By taking back the object of sale, the seller does not withdraw from the contract unless he has specified this explicitly in writing. The seizure of the object of sale by the seller always constitutes a withdrawal from the contract. After taking back the object of sale, the seller is entitled to utilize it, the realization proceeds are to be set off against the liabilities of the buyer – minus suitable realization costs.

(2) The buyer is obliged to treat the object of sale carefully; he is particularly obliged to insure it at his own expense against damages resulting from fire, water and theft with a new-for-old in surance.

(3) In the case of seizures or any other intervention of a third party, the buyer is obliged to inform us of this immediately in writing so that we can institute legal proceedings in accordance with § 771 ZPO. If the third party is not capable of reimbursing us the costs of legal proceedings, in or out of court, in accordance with § 771 ZPO, the buyer is liable for the losses we have incurred.

(4) The buyer is entitled to resell the merchandise in the course of ordinary business; as soon as the buyer resells the merchandise he transfers to the seller his claim arising from the resale to the total of the invoiced amount (including VAT) against his customer or any other third party regardless of whether the object of sale is resold as it is or after further processing. The buyer is entitled to examine the relinquished claim. Our entitlement to collect the claim ourselves remains unaffected by this. We undertake, however, not to collect the claim as long as the buyer meets his financial obligations resulting from collected profits, does not suspend any payments, particularly does not open bankruptcy proceedings, of composition or insolvency proceedings and is not already bankrupt. If, however, this is the case, we can demand that the buyer specify the relinquished claims and their debtors, and specify all information necessary for collection, hand over the appropriate papers, and notify the debtor (third party) of the transfer.

(5) The processing or treatment of the object of sale by the buyer is always executed for us. If the object of sale is processed with other objects which do not belong to us, we are entitled to joint ownership of the new object in the relation of the value of the object of sale (total invoiced amount, including VAT) to the other processed objects at the time of processing. The same applies to the object created by processing as to the object of sale delivered with reservation.

(6) If the object of sale is mixed inseparably with other objects which do not belong to us, we are entitled to joint ownership of the new object in the relation of the value of the object of sale (total invoiced amount, including VAT) to the other mixed objects at the time of mixing. If the mixing takes place in such a way that the buyer’s object is seen as the main component, it is hereby agreed that the buyer transfers joint ownership to us proportionally. The buyer holds the exclusive ownership or joint ownership thus created for the seller.

(7) We undertake to release collateral if so requested by the buyer if the realizable value of the seller’s claim exceeds the total of the collateral by more than 10%; we are entitled to select the collateral to be released.

 

10 Jurisdiction – Place of performance – Severability clause

(1) If the buyer is a body corporate, a common fund under public law, or a businessman, the place of execution and jurisdiction shall be our seat of business; we do, however, also have the right to sue the buyer in his local court. This also applies when the customer has no general place of jurisdiction in Germany or when place of residence or usual abode are not known on the institution of legal proceedings.

(2) The legal relationship is regulated exclusively according to the legislation of the Federal Republic of Germany. Application of the United Nations agreement pertaining to the international sales of goods (CISG) is excluded.

(3) Unless otherwise stipulated in the order confirmation, the place of execution and jurisdiction shall be our seat of business.

(4) Should any provision of these terms of business, including the standard terms and conditions, prove to be or become invalid either in entirety or in part, this shall not affect the validity of the other provisions. The provision which has become invalid either in entirety or in part should be replaced by a provision the economic success of which comes closest to the now ineffective provision.

The products in the catalogue and on this website are not shown true to the original and differ in size, shape and colour from the original.Misprints and errors excepted, Subject to alterations.

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