Terms and Conditions of Sale and Supply

These Conditions of Sale, Delivery and Supply shall apply to direct purchases from Albrecht Jung GmbH & Co. KG. For any purchases from one of our wholesalers as well as subsidiaries or agencies, their respective Conditions of Sale and Delivery shall apply.

I. General provisions

1. Authoritative for the scope of deliveries and services (hereinafter: Services) are the mutual written declarations. However, the Purchaser’s general terms and conditions only apply as far as the Supplier or Service Provider (hereinafter: Supplier) has expressly agreed to them.

2. The Supplier unreservedly retains its exploitation rights concerning proprietary- and copyrights to cost estimates, drawings and other documents (hereinafter: Documents). The Documents may only be disclosed to third parties following the Supplier’s prior consent and, if the order is not placed, must be returned to the Supplier upon the Supplier’s request without delay. Sentences 1 and 2 correspondingly apply to the Purchaser’s Documents; however, they may only be disclosed to those third parties the Supplier has admissibly entrusted with the execution of deliveries.

3. The Purchaser has the non-exclusive right to the use of standard software and firmware with the agreed performance features in unaltered form on the agreed devices. The Purchaser is permitted to create a backup copy of the standard software without any express agreement.

4. Partial deliveries are admissible insofar as they are reasonable to the Purchaser.

II. Prices, payment conditions and offsetting

1. Prices are ex works and exclusive of packing and the respective statutory VAT.

2. Payments are to be effected free of charges to the Supplier’s paying agent.

3. The Purchaser may only set off with claims which are undisputed or have been legally established.

III. Reservation of ownership

1. The items delivered (reserved goods) remain the property of the Supplier until each and every claim against the Purchaser to which the Supplier is entitled under this business relationship has been duly satisfied. If the combined value of the security interests, which the Supplier is entitled to, exceeds the value of all secured claims by more than 20 %, the Supplier will release a corresponding part of the security interests if so requested by the Purchaser.

2. For the duration of the retention of title, the Purchaser may not pledge the retained goods or use them as security, and the resale of the goods is only permitted to resellers in the ordinary course of their business and only on the condition that the reseller receives payment from its customer, or makes the reservation that title will not be transferred to the customer unless the customer has completely fulfilled its payment obligations.

3. If the Purchaser resells reserved goods, the Purchaser assigns, here and now, its future claims against its customers from the resale and all ancillary rights – including any outstanding balances – by way of security to the Supplier without this requiring any special explanations.
Should the reserved goods be resold together with other items without an individual price being agreed for the reserved goods, the Purchaser will assign that portion of the total asking price to the Supplier, which corresponds to the price of the Reserved Goods invoiced by the Supplier.

4. In the case of pledges and the seizure of the reserved goods or other disposals or interventions of third parties the Purchaser will inform the Supplier without delay.

5. Where the Purchaser fails to fulfil its duties, in particular in the event of default on payment, the Supplier is entitled, after the expiry of a reasonable period of time set to the Purchaser to perform, to withdraw from the contract and to take back the goods; the statutory provisions on the dispensability of setting a deadline remain unaffected. The Purchaser is obligated to surrender the goods. Taking back the reserved goods or the assertion of the retention of title or the pledge of the reserved goods on the part of the Supplier does not constitute a withdrawal from the contract, unless the Supplier expressly declares the same.

IV. Delivery periods, default

1. The compliance with delivery periods requires the timely receipt of all Documents to be supplied by the Purchaser, the necessary permits and approvals, in particular plans, as well as the compliance with the agreed payment terms and other obligations to be met by the Purchaser. Should these requirements not be fulfilled on time, the delivery deadlines are extended appropriately on condition that the Supplier is not culpably responsible for the delay.

2. In the event that the failure to comply with those deadlines is due to force majeure, e.g. mobilisation, war, riots or similar occurrences, such as strike, lockout, the deadlines will be extended adequately.

3. If the Supplier is in default, the Purchaser may – as long as the Purchaser can provide evidence of losses incurred from such default – demand compensation for each full week of default to the amount of 0.5 %, however, to a maximum total of 5 % of the price for that part of the deliveries, which, owing to the default, the Purchaser was not able to use for its designated purpose.

4. Both claims for damages on the part of the Purchaser for delivery default and compensation claims in lieu of performance exceeding the limits stipulated in No. 3 are excluded for all cases of delayed delivery, even after the expiry of a delivery deadline that has possibly been set for the Supplier. This does not apply to the extent mandatory liability exists in cases of wilful intent, gross negligence or injury to life, limb or health. The Purchaser may only withdraw from the contract within the framework of the legal provisions as long as the Supplier is responsible for the delay in delivery. The above ruling explicitly does not constitute a change of the burden of proof to the disadvantage of the Purchaser.

5. The Purchaser is obligated, at the Supplier’s request, to declare within a reasonable period of time whether, due to the delay in delivery, it will withdraw from the contract or insist on delivery.

6. If, at the Purchaser's request, dispatch or delivery are delayed by more than one month after notice of readiness for dispatch was given, the Purchaser may be charged storage costs amounting to 0.5% of the price of the supplied goods for each month thereafter, however, with the total storage charges not exceeding a total of 5 % of the price. Both contracting parties are at liberty to give evidence for higher or lower storage costs.

V. Transfer of risk

1. Even in the event of freight-free delivery the risk is transferred to the Purchaser as follows:
a) where goods are supplied without installation or assembly: when they have been dispatched or collected. At the Purchaser’s request and expense the Supplier will insure the consignment against the usual risks of transport;
b) for deliveries that include installation or assembly: on the day the goods are received at the Purchaser's factory or, if so agreed, after a successful trial run.

2. If the dispatch, delivery, the commencement or realisation of installation or assembly, acceptance at the Purchaser’s factory or test run is delayed for reasons attributable to the Purchaser or if the Purchaser is in default of acceptance for other reasons, the risk will pass to the Purchaser.

VI. Acceptance

The Purchaser may not refuse the acceptance of deliveries on account of insignificant defects.

VII. Material Defects

The Supplier is liable for material defects under the following terms:

1. At the discretion of the Supplier, all of those items or services exhibiting a material defect are to be repaired, replaced or provided again free of charge, provided that the reason for the defect already existed at the time when the risk was transferred.

2. Claims for supplementary performance become time-barred within 12 months from the commencement of the statutory limitation period; the same applies to the right to withdrawal from the contract or to price reductions. This time limit does not apply:
– if the law prescribes longer periods, e.g. according to sect. 438 para. 1 No. 2 (Buildings and objects used for buildings) and 634a para. 1 No. 2 (Construction defects) BGB (German Civil Code),
– in the case of wilful intent,
– in the case of fraudulent concealment of the defect, as well as
– in the case of non-compliance with a guarantee of quality. Claims for compensation for expenses according to sect. 445a BGB (German Civil Code) (seller’s recourse) on the part of the Purchaser also become time-barred within 12 months from the commencement of the statutory limitation period, provided that the last contract in the supply chain is no consumer goods purchase.
– The statutory provisions on the suspension of the running, suspension and recommencement of the periods remain unaffected.

3. Complaints on the part of the Purchaser must be submitted in writing without delay.

4. Claims for defects entitle the Purchaser to retain payments to an appropriate extent so that they are proportionate to the material defects occurred. The Purchaser has no right of retention if its claims for defects have become time-barred. Should the complaint be unjustified, the Supplier is entitled to demand compensation from the Purchaser for the expenses incurred.

5. The Supplier must be given the opportunity to effect supplementary performance within a reasonable period of time.

6. If the supplementary performance fails, the Purchaser is entitled – without prejudice to any claims for damages according to No. 10 – to withdraw from the contract or reduce compensation.

7. Claims for defects do not apply in the case of only a minor deviation from the agreed quality, only a minor impairment of usability, natural wear and tear and damage incurred after the transfer of risk due to incorrect or neglectful treatment, excessive use, improper operating materials, defective construction works, unsuitable building ground or as a result of extraordinary external influences not specified in the contract, as well as in the case of non-reproducible software defects. If improper modifications or repair work are carried out by the Purchaser or any third party, claims for defects for these and the arising consequences will be excluded.

8. The Purchaser’s claims on account of the necessary expenses incurred due to the supplementary performance are excluded if the expenses increase because the delivered item has subsequently been relocated to another place than the Purchaser's place of business, unless such relocation is in keeping with its intended use. This applies correspondingly to the Purchaser’s claims for compensation for expenses according to sect. 445a BGB (German Civil Code) (seller’s recourse) provided that the last contract in the supply chain is no consumer goods purchase.

9. The Purchaser can only claim recourse actions against the Supplier according to sect. 445a BGB (German Civil Code) (seller’s recourse) insofar as the Purchaser has not reached any agreements with its customer which go beyond the statutory claims for defects.

10. Claims for damages on the part of the Purchaser on account of a material defect are excluded.
This does not apply in the event of fraudulent concealment of the material defect, non-compliance with a guarantee of quality, injury to life, limb or health, and in the case of intentional or grossly negligent breach of duty on the part of the Supplier. The above ruling does not constitute a change of the burden of proof to the disadvantage of the Purchaser. Any further or other claims of the Purchaser for material defects than those provided for by this Art. VIII are excluded.

VIII. Industrial property rights and copyright; defects of title

1. Unless otherwise agreed, the Supplier is only obligated to ensure that the goods delivered are free of any third-party industrial property rights or copyrights (hereinafter: Property Rights) in the country of the place of delivery. If a third party makes justified claims against the Purchaser due to the infringement of Property Rights on account of the goods delivered by the Supplier and used according to the terms of the contract, the Supplier is liable to the Purchaser for a period stipulated in Art. VII No. 2 as follows:
a) The Supplier will at its discretion and at its cost either obtain a right of use for the respective delivery, modify the delivered goods so that the Property Rights will no longer be infringed or replace the goods.
Should the supplementary performance not be possible or fail, the Purchaser is entitled to exercise its statutory right of rescission or reduction.
b) The Supplier’s obligation to pay damages is governed by Art. X.
c) The above obligations of the Supplier only apply insofar as the Purchaser notifies the Supplier without delay of any such claim asserted by the third party in writing, does not concede the existence of an infringement and leaves any protective measures and settlement negotiations to the discretion of the Supplier. Should the Purchaser discontinue the use of the items delivered in order to mitigate damages or for other important reasons, it undertakes to notify the third party that the discontinuation of use does not imply the acceptance of an infringement of a Property Right.

2. Claims on the part of the Purchaser are excluded, if it is responsible for the infringement of a Property Right.

3. Claims on the part of the Purchaser are also excluded, if the infringement of a Property Right has been caused by specific requirements of the Purchaser, by an application not foreseeable by the Supplier or due to the fact that the delivered goods have been changed by the Purchaser or used together with products not delivered by the Supplier.

4. In the case of the infringement of a Property Right the provisions of Art. VII No. 4, 5 and 9 apply correspondingly to the Purchaser’s claims governed by No. 1a).

5. In the case of other defects of title the provisions of Art. VII apply accordingly.

6. Any further claims for a defect of title on the part of the Purchaser against the Supplier and its vicarious agents other than those regulated in this Art. VIII are excluded.

IX. Impossibility; adaptation of contract

1. If delivery is impossible, the Purchaser 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, which, due to the impossibility, cannot be used for its designated purpose. The above limitation does not apply as far as mandatory liability exists in cases of intent, gross negligence or injury to life, limb or health; this does not constitute a change of the burden of proof to the disadvantage of the Purchaser. The Purchaser’s right to withdraw from the contract remains unaffected.

2. Should occurrences as defined by Art. IV No. 2 a) to c) significantly change the economic meaning or the content of the delivery or have a significant effect on the Supplier's operations, the contract will be adapted appropriately in good faith. Where this is economically unjustifiable, the Supplier has the right to withdraw from the contract. If the Supplier intends to exercise its right to withdraw from the contract, it must notify the Purchaser thereof without undue delay after having realized the consequences of the event; this applies even if an extension of the delivery period was initially agreed with the Purchaser.

X. Other claims for damages

1. Unless agreed otherwise in these General Terms and Conditions, claims for damages on the part of the Purchaser, regardless of the legal grounds, in particular for the violation of duties resulting from obligation and tortuous acts, are excluded.

2. This does not apply to cases where liability is mandatory, such as in cases subject to the Product Liability Act, in the event of intent, gross negligence, in the case of non-compliance with a guarantee assumed, in the case of injury to life, limb or health or in the event of culpable breach of cardinal contractual obligations.
The claim for damages with regard to the breach of cardinal contractual obligations, however, is limited to the foreseeable damage typical for this type of contract, unless there is wilful intent or gross negligence or liability for injury to life, limb or health involved. The above ruling does not constitute a change of the burden of proof to the disadvantage of the Purchaser.

3. The Purchaser’s claims for damages due to a violation of the duty to render supplementary performance are excluded if the Supplier has rightfully refused the supplementary performance on account of the expiry of the warranty period or the violation of the obligation of examination and notification of defects.

XI. Place of jurisdiction and applicable law

1. If the Purchaser is a merchant, the Supplier’s registered office is the sole place of jurisdiction for all disputes directly or indirectly resulting from the contractual relationship.

However, the Supplier is also entitled to go to law at the Purchaser’s place of business.

2. German substantive law applies to legal relationships in connection with this contract to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).

XII. Binding character of the contract

Even if individual provisions of the contract are or become legally ineffective, the remaining parts of the contract will continue to be binding. This does not apply if adherence to the contract constitutes an unreasonable hardship for one of the parties.

ALBRECHT JUNG GMBH & CO. KG
Volmestraße 1
58579 Schalksmühle
Germany

Tel. +49 2355 806-0
Fax +49 2355 806-204
impressum@jung.de
www.jung.de

Date of publication: 02.04.2020