JAG – JOCH ANTRIEBE GMBH for the delivery of movable property (as of January 1st, 2021)

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This is an automatic translated english version of the original german general conditions of sale. Only the german version is legally binding.

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I. Scope: Purchase and work delivery contracts for movable property

1. These General Terms and Conditions of Sale (AVB) apply to all of our business relationships with our customers (“buyers”). The AVB only apply if the buyer is an entrepreneur (§ 14 BGB), a legal entity under public law or a special fund under public law

2. The AVB apply in particular to contracts for the sale and/or delivery of movable items ("goods"), regardless of whether we manufacture the goods ourselves or buy them from suppliers (§§ 433, 650 BGB).

3. Our AVB apply exclusively. Deviating, conflicting or supplementary general terms and conditions of the buyer only become part of the contract if and to the extent that we have expressly agreed to their validity. This requirement for consent applies in any case, for example even if we carry out the delivery to the buyer without reservation, knowing the general terms and conditions of the buyer.

4. In individual cases, individual agreements made with the buyer (including ancillary agreements, additions and changes) always take precedence over these AVB.

5. References to the validity of legal regulations only have clarifying meaning. Even without such a clarification, the statutory provisions apply unless they are directly modified or expressly excluded in these AVB

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II.  Contract conclusion

1. Our offers are non-committal and non-binding. This also applies if we have provided the buyer with catalogues, technical documentation (e.g. drawings, plans, calculations, references to DIN standards), other product descriptions or documents - also in electronic form - to which we have ownership rights and copyrights Reserved.

2. The order of the goods by the buyer is considered binding

3. Acceptance can be declared either in writing (e.g. by order confirmation) or by delivery of the goods to the buyer

 

III.  Delivery time and delay

1. If we are unable to meet binding delivery deadlines for reasons for which we are not responsible (non-availability of the service), we will inform the buyer of this immediately and at the same time communicate the expected new delivery deadline. If the service is also not available within the new delivery period, we are entitled to withdraw from the contract in whole or in part; we will immediately refund any consideration already provided by the buyer. A case of non-availability of the service in this sense is, in particular, the failure to receive delivery from our supplier in good time if we have concluded a congruent cover transaction, neither we nor our supplier are at fault or we are not obliged to procure in individual cases

2. The rights of the buyer like. VIII of these AVB and our statutory rights, in particular in the case of an exclusion of the obligation to perform (e.g. due to the impossibility or unreasonableness of the service and/or supplementary performance), remain unaffected.

 

IV. Delivery, transfer of risk, acceptance, default of acceptance

1. Delivery is ex warehouse, which is also the place of performance for delivery and any supplementary performance. At the request and expense of the buyer, the goods will be sent to another destination (sales by mail). Unless otherwise agreed, we are entitled to determine the type of shipment (in particular transport company, shipping route, packaging) ourselves

2. The risk of accidental loss and accidental deterioration of the goods is transferred to the buyer at the latest when the goods are handed over. In the case of mail-order sales, however, the risk of accidental loss and accidental deterioration of the goods as well as the risk of delay is already transferred when the goods are delivered to the forwarding agent, carrier or other person or institution responsible for carrying out the shipment.

 

V.  Prices and terms of payment

1. Unless otherwise agreed in individual cases, our current prices at the time the contract is concluded shall apply, ex warehouse plus statutory

2. In the case of mail-order sales (IV. Item 1), the buyer bears the transport costs ex warehouse and the costs of any transport insurance requested by the buyer. Any customs duties, fees, taxes and other public charges are borne by the buyer.

3. The buyer is only entitled to set-off or retention rights if his claim has been legally established or is undisputed. In the event of defects in the delivery, the buyer's counterclaims are particularly welcome. VII clause 6 sentence 2 of these AVB unaffected.

4. If, after conclusion of the contract, it becomes apparent (e.g. through an application for the opening of insolvency proceedings) that our claim to the purchase price is at risk due to the buyer's inability to pay, we are entitled to refuse performance in accordance with the statutory provisions and - if necessary after setting a deadline - to withdraw from the contract (§ 321 BGB). In the case of contracts for the manufacture of non-fungible items (custom-made products), we can declare our withdrawal immediately; the statutory provisions on the dispensability of setting a deadline remain unaffected.

 

VI. retention of title

1. We retain ownership of the goods sold until all our current and future claims from the purchase contract and an ongoing business relationship (secured claims) have been paid in full

2. The goods subject to retention of title may not be pledged to third parties or assigned as security before the secured claims have been paid in full. The buyer must inform us immediately in writing if an application for the opening of insolvency proceedings has been made or if third parties have access to the goods belonging to us (e.g. attachments).

3. In the event of breach of contract by the buyer, in particular non-payment of the purchase price due, we are entitled to withdraw from the contract in accordance with the statutory provisions and/or to demand the return of the goods on the basis of the retention of title. The demand for return does not include a declaration of withdrawal; on the contrary, we are entitled to only demand the return of the goods and to reserve the right to withdraw from the contract. If the buyer does not pay the purchase price due, we may only assert these rights if we have previously unsuccessfully set the buyer a reasonable deadline for payment or setting such a deadline is unnecessary under the statutory provisions

4. Until revoked, the buyer is authorized in accordance with (c) below to resell and/or process the goods subject to retention of title in the ordinary course of business. In this case, the following also apply

   1. The retention of title extends to the products created by processing, mixing or combining our goods at their full value, whereby we are considered the manufacturer. If third-party goods are processed, mixed or combined with third-party goods, we acquire co-ownership in proportion to the invoice value of the processed, mixed or combined goods. Otherwise, the same applies to the resulting product as to the product delivered under retention of title

5. The buyer hereby assigns to us as security the claims against third parties arising from the resale of the goods or the product in total or in the amount of our possible co-ownership share in accordance with the preceding paragraph. We accept the assignment. The obligations of the buyer mentioned in paragraph 2 also apply with regard to the assigned claims.

6. The buyer remains authorized to collect the claim alongside us. We undertake not to collect the claim as long as the buyer meets his payment obligations to us, there is no deficiency in his ability to pay and we do not like the retention of title by exercising a right. claim paragraph 3. If this is the case, however, we can demand that the buyer informs us of the assigned claims and their debtors, provides all the information required for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment. In this case, we are also entitled to authorize the buyer to resell and process the goods subject to retention of title

7. if the realizable value of the securities exceeds our claims by more than 10%, we will provide securities of our choice at the request of the buyer

 

VII. Claims for defects by the buyer

1. The statutory provisions shall apply to the buyer's rights in the event of material defects and defects of title (including incorrect and short deliveries as well as improper assembly or defective assembly instructions), unless otherwise specified below. In all cases, the special statutory provisions for the final delivery of the unprocessed goods to a consumer remain unaffected, even if the latter has processed them further (supplier recourse according to §§ 478 BGB). Claims from supplier recourse are excluded if the defective goods are further processed by the buyer or another entrepreneur, e.g. by installing them in another product

2. Our liability for defects is primarily based on the agreement made on the quality of the goods.

3. If the quality has not been agreed, it is to be assessed according to the statutory provisions whether there is a defect or not (§ 434 Para. 1 Clause 2 and 3 BGB). However, we assume no liability for public statements by the manufacturer or other third parties (e.g. advertising statements) that the buyer has not pointed out to us as decisive for his purchase.

4. In principle, we are not liable for defects that the buyer is aware of at the time the contract is concluded or is unaware of due to gross negligence (Section 442 of the German Civil Code). Furthermore, the buyer's claims for defects presuppose that he has complied with his statutory inspection and notification obligations (§§ 377, 381 HGB). In the case of building materials and other goods intended for installation or other further processing, an inspection must be carried out immediately before processing. If a defect becomes apparent upon delivery, inspection or at any later point in time, we must be notified of this immediately in writing

5. If the delivered item is defective, we can initially choose whether to provide supplementary performance by eliminating the defect (repair) or by delivering a defect-free item (replacement delivery). Our right to refuse supplementary performance under the statutory requirements remains unaffected.

6. We are entitled to make the supplementary performance owed dependent on the buyer paying the purchase price due. However, the buyer is entitled to retain a part of the purchase price that is reasonable in relation to the defect.

7. The buyer must give us the time and opportunity required for the supplementary performance owed, in particular to hand over the goods complained about for inspection purposes. In the case of a replacement delivery, the buyer must return the defective item to us in accordance with the statutory provisions. Subsequent performance includes neither the removal of the defective item nor the reinstallation if we were not originally obliged to install it

8. In urgent cases, e.g. if operational safety is endangered or to avert disproportionate damage, the buyer has the right to remedy the defect himself and to demand compensation from us for the expenses objectively necessary for this. We must be informed immediately, if possible beforehand, of such a self-performance. The right of self-remedy does not exist if we were entitled to subsequent performance according to the statutory provisions.

9. If the supplementary performance has failed or a reasonable period of time to be set by the buyer for the supplementary performance has expired without success or is unnecessary according to the statutory provisions, the buyer can withdraw from the purchase contract or reduce the purchase price. In a minor defect, however, there is no right of withdrawal.

10. Claims of the buyer for damages or reimbursement of wasted expenses only exist in the case of defects in accordance with Section VIII and are otherwise

 

VIII. Other Liability

1. Unless otherwise stated in these AVB, including the following provisions, we shall be liable in accordance with the statutory provisions in the event of a breach of contractual and non-contractual obligations

2. We are liable for damages - for whatever legal reason - within the framework of fault-based liability in the event of intent and gross negligence. In the event of simple negligence, we are only liable, subject to statutory liability limitations (e.g. diligence in our own affairs; insignificant breach of duty).

   1. for damage resulting from injury to life, limb or health,

   2. for damages resulting from the breach of a material contractual obligation (obligation, the fulfillment of which is essential for the proper execution of the contract and on the observance of which the contractual partner regularly relies and may rely); in this case, however, our liability is limited to compensation for the foreseeable, typically occurring damage

3. The limitations of liability resulting from paragraph 2 also apply to third parties and to breaches of duty by persons (also in their favour) for whose fault we are responsible according to statutory provisions. They do not apply if a defect has been fraudulently concealed or if a guarantee has been given for the quality of the goods and for claims by the buyer after the

4. Due to a breach of duty that does not consist of a defect, the buyer can only withdraw or terminate if we are responsible for the breach of duty. A free right of termination of the buyer (in particular according to §§ 650, 648 BGB) is excluded. Otherwise, the statutory requirements and legal consequences apply.

 

IX.  Statute of limitations

1. Contrary to § 438 Section 1 No. 3 BGB, the general limitation period for claims arising from material and legal defects is one year from delivery. If acceptance has been agreed, the limitation period begins with the

2. The above limitation periods of sales law also apply to contractual and non-contractual claims for damages by the buyer based on a defect in the goods, unless the application of the regular statutory limitation period (§§ 195, 199 BGB) would lead to a shorter limitation period in individual cases. Claims for damages by the buyer according to § 8 paragraph 2 sentence 1 and sentence 2(a) as well as under the Product Liability Act only come under the statutory limitation periods.

 

X.  Choice of law and jurisdiction

1. The law of the Federal Republic of Germany applies to these AVB and the contractual relationship between us and the buyer, to the exclusion of uniform international law, in particular the UN Sales Convention.

2. If the buyer is a merchant within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, the exclusive – including international – place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship is our place of business in 88069 Tettnang Germany. The same applies if the buyer is an entrepreneur within the meaning of § 14 BGB. In all cases, however, we are also entitled to file suit at the place of performance of the delivery obligation in accordance with these AVB or a prior individual agreement or at the buyer's general place of jurisdiction. Overriding legal regulations, in particular regarding exclusive responsibilities, remain unaffected.