General Terms and Conditions of Feuerschutz Jockel GmbH & Co. KG

§ 1 General Information - Range of Application

(1) Our Conditions of Sale are to apply exclusively. We do not recognise any conditions of the customer to the contrary or those deviating from our Conditions of Sale unless we have expressly agreed to their validity in writing. Our Conditions of Sale are also to apply when, without any reservation, we carry out the supply to the customer after having been informed with regard to the customer's conditions to the contrary or those deviating from our Conditions of Sale.

(2) All agreements that are made between us and the customer for the purpose of carrying out this contract are laid down in writing in this contract.

(3) Our Conditions of Sale only apply with regard to business undertakings in the sense of § 310 Section 1 BGB (Civil Law Code).

(4) Our Conditions of Sale are also to apply to all future transactions with the customer.

 

§ 2 Quotation - Quotation Documentation

(1) Our quotation is without obligation insofar as nothing to the contrary is contained in the confirmation of order.

(2) We reserve the right of ownership and copyright to illustrations, drawings, calculations and other documentation. This is also to apply to such documentation in writing which is termed "confidential". The customer will require our agreement in writing before this documentation may be made available to third parties.

 

§ 3 Prices - Conditions of Payment

(1) We reserve the right to alter our prices by an approprate amount if, following the conclusion of the contract reductions or increases in the costs occur, especially those due to collective bargaining agreements or alterations in the prices of materials. These will, upon request, be documented by us for the customer.

(2) Insofar as nothing to the contrary is contained in the confirmation of order, our prices are to be understood as being "ex works", packing not included. This will be invoiced separately.

(3) The legally-applicable value added tax is not included in our prices; it will be stated separately in the invoice in the amount legally applying on the date of the issuin of the invoice.

(4) The deduction of any cash discount requires a special agreement in writing.

(5) Insofar as nothing to the contrary is contained in the confirmation of order, the purchase price is to be understood as being net (without deduction) and due for payment within 30 days after the date of invoice. The legally-applying regulations with regard to the consequences of being in arrear of payment are to apply here.

(6) The customer will only be entitled to rights of compensation in the case that his counter-claims have been found to have legal force, are uncontested or are recognised by us. In addition, he is authorised to exercise the right of lien insofar as his counter-claim ist based on the same contractual relationship.

 

§ 4 Times of Delivery

(1) Our right to make correct deliveries ourselves and in good time is reserved. We will without delay inform the customer concerning non-deliverability of the subject of delivery and in the case of withdrawal from the contract will without delay reimburse the customer with regard to the appropriate down payment. The beginning of the time of delivery stated by us is conditional upon the clarification of all technical details.

(2) The adherence to our obligation to make delivery is further conditional upon the customer's orderly fulfilment oft his obligations in good time. The right to defence in the sense of the contract not having been fulfilled is reserved.

(3) If the customer is in arrears of acceptance or if he is guilty of a breach of other obligations to render assistance, we are entitled to demand reimbursement for damage caused us in that respect, including for any additional expenditure. We reserve the right to make further claims.

(4) Insofar as the conditions stated in Section (3) exist, the risk of an accidental destruction or of an accidental deterioration of the object of purchase is transferred to the customer at that moment at which he has become in arrears of acceptance or debtor's delay.

(5) We are liable according to the legal regulations insofar as the purchase contract on which the translation is based is a time bargain in the sense of § 286 Section 2 No. 4 BGB (Civil Law Code) or of § 376 HGB (Commercial Law Code). We are also liable according to the legal regulations insofar as the customer ist, as a consequence of arrears of delivery for which we are responsible, entitled to claim that his interest in the further fulfilment of the contract has ceased.

(6) We are further liable according to the legal regulations insofar as the delay in delivery is based on a breach of contract for which we are intentionally responsible or which has been caused by our gross negligence; any fault of our representatives or caused by those assisting us in fulfilment of our contract is to be laid at our door. Insofar as the delay in delivery is not based on a breach of contract for which we are intentionally responsible, our liability to make compensation for damage is limited to that typical damage occuring that is foreseeable.

(7) We are also liable according to the legal regulations insofar as the delay in delivery for which we are responsible is based on the breach of an essential contractual obligation in which we are at fault; in this case, however, the liability to make compensation for damage is limited to that typical damage occurring that is foreseeable.

(8) Otherweise, in the case of a delay in delivery, we are within the framework of a flat-rate calculation liable for a compensation for this delay in the amount of 0.5 % of the value of the delivery for every full week of delay, this amount however not exceeding a maximum of 5 % of the value of the delivery.

(9) Further legal claims and right of the customer remain reserved.

 

§ 5 Transference of Risk - Charges for Packaging

(1) Insofar as nothing to the contrary is stated in the confirmation of order, delivery is agreed to be "ex works".

(2) We will not take back packaging unless an appropriate agreement has beend made with the customer.

(3) Insofar as the customer desires this, we will conclude a transport insurance to cover the delivery; any costs incurred by this will be covered by the customer.

 

§ 6 Liability for Defects and Faults

(1) Claims on the part of the customer due to defects and faults require that he has fulfilled his obligations in accordance with § 377 HGB (Commercial Law Code) with regard to inspection and making complaints in an orderly manner.

(2) Insofar as there is a defect or fault in the object of purchase, we are, at our own option, entitled to a subsequent fulfilment of the contract in the form of remedying the defect or fault, or of delivering a new objekt free of defects or faults. In the case of remedying of the defect or fault, we will bear the expenses necessary only up to the amount of the purchase price.

(3) Should this subsequent fulfilment fail, the customer is at his option entitled to require that he be released from the contract or receive a price reduction.

(4) We are liable according to the legal regulations insofar as the customer makes valid claims for damages which are based on our intention or on gross negligence on our part, including those based on the intention or on the gross negligence on the part of our representatives or of those assisting us in the fulfilment of our contract. Insofar as not intentional breach of contract on our part is proven, our liability to make compensation for damage is limited to that typical damage occuring that is foreseeable.

(5) We are liabel according to the legal regulations insofar as we are guilty of the breach of an essential contractual obligation; in this case, however, the liability to make compensation for damage is limited to that typical damage occurring that is foreseeable.

(6) The liability with regard to injury to life, body or health caused by us remains unaffected; this also applies to the court-enforced liability according to the law on product liability.

(7) Liability is excluded insofar as nothing to the contrary is mentioned above.

(8) The statutory period of limitation for claims with regard to faults and defects is 12 months calculates from the transference of risk.

(9)The statutory period of limitation in the case of a complaint for recourse with regard to the delivery according to §§ 478, 479 BGB (Civil Law Code) remains unaffected; it expires at the latest two months after the time when the customer has fulfilled the claims of the user of the product in question. For the statutory period of limitations for all claims that are not subject to the limitation due to a fault or defect of the object of the contract, the exclusion period of 16 months isto apply. It begins from the point of knowledge of the damage and of the person causing the damage.

 

§ 7 Total Liability

(1) A liability for compensation for damage continuing beyond that provided for in § 6 is - without consideration of the legal nature of the claim which has been made - excluded. This applies especially to claims for compensation for damage resulting from our negligence during the conclusion of the contract, or resulting from other breaches of obligations and from unlawful claims for the reimbursement for material damage in accordance with § 823 BGB (Civil Law Code).

(2) The limitation in accordance with Section (1) also applies insofar as the customer demands reimbursement for futile expenditure instead of making a claim for reimbursement of the damage.

(3) Insofar as our liability to make compensation for damage is excluded or limited, this also applies with regard to the personal liability to make compensation on the part of our employees, workers, co-workers, representatives and those assisting us in the fulfilment of our contract.

 

§ 8 Securing of the Retention of Title

(1) Until the receipt of all payments resulting from the business relationsship with the customer, we reserve the right of ownership with regard to the object of the purchase. In the case of action in breach of the contract on the part of the customer, especially that of being in arrears of payment, we are entitled to take back the object of the purchase. In our taking back the object of purchase, this is a revocation of the contract. After our taking back the object of purchase, we are entitled to make use oft it and the proceeds of this making use oft it is to be reckoned against the debts of the customer - less reasonable costs incurred by this action.

(2) The customer is obliged to treat the object of the purchase with care; he is especially obliged to insure this sufficiently at his own expense, and for the value of the new object, against damage due to fire, water and theft. Insofar as maintenance and inspection work is necessary, the customer must have this carried out in good time at his own expense.

(3) In the case of seizures or other interference on the part of third parties, the customer is to inform us in writing without delay, so that we will be able to take legal action in accordance with § 771 ZPO (General Practice Act). Insofar as the third party is not in the position to reimburse us for the court and out-of-court costs of our legal action in accordance with § 771 ZPO (General Practice Act), the customer is liable to us for the losses incurred due to this.

(4) The customer is entitled to resell the object of the purchase in the ordinary course of business; however, at this moment he already relinquishes to us all claims in the amount of the final invoice amount (including value added tax) resulting from our claim, these claims having arisen out of the resale with regard to the purchaser or third party. This is independent of wheter the object of the purchase has beend resold without further work or following further work. Even after this relinquishment, the customer remains entitled to collect these claims. Our power to collect the claim ourselves remains unaffected by this. We bind ourselves however not tot collect the claim as long as the customer meets his obligation to make payment from the proceeds collected by him, does not come into arrears of payment and especially as long as not application has been made for the opening of composition / or insolvency proceedings or cessation of payments has take place. However, should this be case, we are permitted to demand that the customer informs us with regard to the claims relinquished and to their debtor and gives all details necessary for the collection, surrenders the attendant documentation to us and informs the debtors (third parties) of this relinquishment.

(5) The further processing or rebuilging of the object of purchase by the customer is in all cases carried out in our name. Should the object of purchase be further processed with other objects that do not belong to us, we then acquire the co-ownership of the new object in the relationship of the value of the object of purchase (final invoice amount including value added tax) to the other processed objects at the time of the further processing. Otherwise, the same ruling applies to the object produced by this further processing as to the object of purchase supplied subject to reservation.

(6) Should the object of purchase be inseparably intermingled with objects not belonging to us, we then acquire the co-ownership of the new object in the relationship of the value of the object of purchase (final invoice amount including value added tax) to the other intermingled objects at the time of the intermingling. hould this intermingling take place in such a manner that the object of the customer is to be regarded as the principal object, it is taken to be agreed that the customer transfers to us our share of the co-ownership. The customer is to keep the sole ownership or co-ownership created in this manner for us.

(7) We bing ourselves, at the request of the customer, to release the sureties due to us to that extent that the realisable value of our sureties exceeds the claim to be assured by more than 10 %. The selection of the sureties to be released is to lie with us.

 

§ 9 Place of Jurisdiction - Place of Performance

(1) Insofar as the customer is a merchant, our seat of business is our place of jurisdiction; we are however also entitled to go to court against the customer at the court of his place of residence.

(2) The law of the Federal Republic of Germany is to apply; the validity of the UN purchasing law is excuded.

(3) Insofar as nothing else is stated in the confirmation of order, our seat of business is the place of performance.

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