General Terms and Conditions
of JDI Europe GmbH
Status as of 03/2020
§ 1 General
These General Terms and Conditions shall apply to all deliveries and services provided by JDIE, including those in future. They shall applyexclusively and only to entrepreneurs within the meaning of § 14 BGB (German Civil Code), to legal persons under public law and to special funds under public law (hereinafter collectively “Customer”).
JDIE does not accept any deviating or contradictory terms and conditions imposed by the Customer unless JDIE expressly accept their validity in written form.
These General Terms and Conditions shall also apply if JDIE carries out deliveries or provide services to the Customer unconditionally in the knowledge of conflicting or deviating terms and conditions of the Customer.
§ 2 Quotations
Quotations are subject to change without notice, samples are not binding. A contract is only concluded when it has been confirmed by JDIE in writing (see § 3) or when the goods have been delivered. JDIE reserves the right to technical alterations and changes of shape and color to the extent the Customer may reasonably be expected to accept these.
§ 3 Acceptance of orders
Orders and other assignments are binding for the Customer. JDIE may accept such offer of a contract incorporated in such order or assignment within two weeks after JDIE’s receipt. Such commitment becomes binding for JDIE only after explicit written acceptance (Order Acknowledgement). JDIE may omit the Order Acknowledgement in case of immediate delivery or performance.
Agreements, regardless of whether they concern main performance, ancillary performance or framework conditions, shall only be binding on JDIE after written confirmation by JDIE. This also applies to assurances, guarantees, assumption of procurement risks or ancillary agreements. JDIE must expressly designate guarantees and assurances of properties as such.
§ 4 Prices and terms of payment
Payments by the Customer shall be made in EURO. If JDIE accepts payment in another currency in writing, the exchange rate applicable at the time of the quotation preparation shall be decisive. The prices are net ex warehouse (Ex Works pursuant to Incoterms 2020) including normal packaging and excluding shipment. All prices and incidental cost and expenses, in particluar shipping costs, will be charged on the basis of the price list valid at the time the contract is concluded. Discounts must be agreed upon separately.
The statutory value added tax is not included in the prices; it will be itemized in the invoice separately at the rate applicable on the day of invoicing.
JDIE reserves the right to unilaterally and appropriately change the prices, if and to the extent the costs as well as the costs of JDIE subsuppliers, in particular costs of material procurement, production, taxes, customs duties, wage and ancillary wage costs as well as energy costs and costs increase due to environmental requirements increase after conclusion of the contract. Upon request, JDIE shall provide evidence of the cost increases.
Payments shall be latest due within 30 days after invoice date in cash and without any deductions. Should the Customer be in default of payment, JDIE is authorized to charge interest in the statutory rate. JDIE reserves the right to put forward higher claims for damages caused by defaulted performance. JDIE shall not be obliged to accept payment by bill of exchange or cheque; in any case, bills of exchange and cheques shall only be submitted on account of performance. The submission of bills of exchange or cheques does not lead to deferment of JDIE claims. The costs associated with the realisation of a bill of exchange or cheque shall be borne by the Customer.
A set-off by the Customer is only permissible with counterclaims which are undisputed or legally established or recognised by JDIE. The Customer has also no right to retention based on disputed counterclaims or counterclaims from other con-tractual relations. All JDIE claims, including those for which payment by instalments has been agreed, shall become due immediately and the granting of a payment deadline shall lapse if the payment deadline for a claim is not met or if the Customer defaults or if an application for insolvency is filed against his assets or if he has provided information on his assets. In these cases, or if, after conclusion of the contract, JDIE becomes aware of circumstances which are likely to significantly reduce the creditworthiness of the Customer and which endanger the payment of our outstanding claims by the Customer under the respective contractual relationship, JDIE is also entitled to make outstanding deliveries dependent on advance payments or the provision of security. If the advance payment or the provision of security is not made even after expiry of a reasonable grace period, JDIE shall be entitled to withdraw from the contract.
Irrespective of any deviating determination by the Customer, JDIE is entitled to credit the Customer’s payments first against prior debts, next against any incurred costs, next against interest, and finally against the principal claim
§ 5 EC-turnover tax on imports
To the extent the Customer has its legal domicile outside the Federal Republic of Germany, the Customer is obligated to observe the EC regulations on turnover tax on imports. The Customer shall inform JDIE about its turnover ID number and any changes to such number without further request. Upon request, the Customer shall disclose information on its capacity as entrepreneur, use and transport of the delivered goods, and also for statistical reporting requirements.
The Customer also agrees to reimburse JDIE for any expended time and expenses JDIE shall incur in context with missing or inadequate particulars about turnover tax on imports.
JDIE shall not be liable for the consequences of missing or inadequate particulars about turnover tax on imports unless JDIE acts intentionally or with gross negligence.
Customs clearance of the goods (including the payment of taxes and duties) is the responsibility of the Customer.
§ 6 Period of delivery
Specified delivery periods shall commence upon dispatch of the order confirmation, but not before clarification of all technical questions and not before timely and proper fulfilment of the Customer’s obligations. Delivery deadlines and the beginning of the delivery period stated by JDIE shall be subject to timely receipt of correct deliveries from JDIE subsuppliers. This applies only if JDIE is not responsible for a failure to deliver or for incorrect delivery, in particular in case of congruent cover business with JDIE subsupplier. JDIE shall immediately inform the Customer about anonavailability of performance and upon request will immediately refund the respective consideration. Compliance with the delivery commitment also requires timely and proper contract performance by the Customer. JDIE reserves the right to defense of non- performance of contract.
Force majeure, labour disputes, unrest, official measures and other unforeseeable, unavoidable and serious events shall release the contracting parties from their performance obligations for the duration of the disruption and to the extent of its effect. This shall also apply if these events occur at a time when the affected party is in default. The contracting parties shall be obliged to provide within reason the necessary information and to adjust their obligations to the changed circumstances in good faith. If delays exceed a period of two months, both parties are entitled to withdraw from the contract with regard to the scope of services affected. Other claims do not exist.
Should the Customer default in accepting the delivery of goods or should he violate any other duty to cooperate, JDIE shall be entitled to demand reimbursement for any damages. Under the conditions stated above, the risk of accidental loss or accidental deterioration of the of the object sold passes to the Customer at the time at which the Customer is in default of acceptance or debtor’s delay.
Should the underlying purchase contract be a contract where time is of the essence as defined in § 323 sec. 2 No. 2 BGB (German Civil Code) or in § 376 HGB (German Commercial Code), JDIE shall be liable in accordance with statutory provisions. JDIE shall be also liable in accordance with statutory provisions if, as a result of a default in delivery for which JDIE is responsible, the Customer shall be entitled to assert that its interest in the further fulfilment of the contract has ceased. In any case the liability of JDIE shall be limited to foreseeable damages typical for the respective type of contract.
JDIE shall be also liable in accordance with with statutory provisions in case the default of delivery is caused by intentional or grossly negligent breach of contract for which JDIE is responsible. Insofar as the default in delivery is not due to an intentional breach of contract for which JDIE is responsible, the liability of JDIE shall be limited to foreseeable damages typical for the respective type of contract.
JDIE shall be liable in accordance with statutory provisions to the extent the default of delivery within the scope of JDIE’s responsibility is caused by culpable violation of essential contractual obligations. In this case, the liability of JDIE shall be limited to foreseeable damages typical for the respective type of contract.
Otherwise, in the event of a default in delivery, JDIE shall be liable for each completed week of delay only within the framework of a lump-sum compensation for delay amounting to 1% of the deliverey value of the delayed performance, but no more than 5% of the delivery value of the delayed performance. However, JDIE shall not be liable in the event of only slightly negligent infringement.
§ 7 Shipment, Passage of risk
Delivery is made ex warehouse for the account of Customer and at Customer’s risk unless stated differently in the Order Acknowledgement. In case delivery free domicile is agreed, this will not affect the passage of risk.
Risk passes to the Customer when the good sold is transferred to the forwarding company or leaves our warehouse for the purpose of shipment. If such shipment is delayed due to circumstances within the Customer’s scope of responsibility, the risk passes to the Customer at the time the Customer is notified of the readiness for shipment. In this case, however, JDIE shall be obliged to take out the insurances requested by the Customer at the Customer’s request and expense. Furthermore, JDIE shall be entitled to invoice the storage costs incurred or a flat rate of 0.5% of the value of the goods per month. In this case, the price or other remuneration shall become due when the goods are ready for dispatch.
§ 8 Rights of Customer in the event of defects
If the quality of the goods shall not been agreed separately, the manufacturer’s product description shall be deemed to have been agreed. Public statements, praise or advertising by JDIE or by the manufacturer shall not represent any agreement about the quality of the goods.
The delivered goods must be carefully inspected by Customer immediately after delivery to the Customer or to third parties determined by the Customer. Defects which are apparent during an inspection of the goods after delivery must be reported in writing immediately, at the latest within five days after delivery of the goods, other defects immediately, at the latest within two weeks after their discovery. The timeliness of the notification shall depend on the time of its receipt by JDIE. In the event of late notification of defects, any rights of the Customer in respect of the defect in question shall lapse.
The Customer shall bear the vull burden for all claim prerequisites, in particular for the defect itself, for the time of detection of the defect and for the timeliness of the notice of defect.
For defects in the goods, JDIE shall initially provide a warranty at JDIE’s discretion by repair or replacement (subsequent performance).
If the subsequent performance fails, the Customer may, at its discretion, demand a reduction in payment (reduction) or rescission of the contract (withdrawal). However, the right of withdrawal is excluded for only minor breaches of contract, in particular for only minor defects.
If the Customer claims damages after failed subsequent performance, the goods shall remain with the Customer if this is reasonable. The compensation is limited to the foreseeable damage typical for the contract. JDIE shall bear dismantling and installation costs only in the event of fault attributable to JDIE.
The statute of limitation period for claims based on defects is one year calculated from the passing of the risk. This shall also apply to goods which has usually been used for a building and which causes the defectiveness of the building.
§ 9 Liability
JDIE shall be liable in accordance with the statutory provisions for damages caused intentionally or by gross negligence on the part of legal representatives or executive employees as well as for personal injury. In the case of intent or gross negligence on the part of simple vicarious agents and in the case of slightly negligent breach of essential contractual obligations which are indispensable for achieving the purpose of the contract and on the strict observance of which the Customer may therefore rely, the liability of JDIE shall be limited to the foreseeable, contract-typical, direct average damage in accordance with the nature of JDIE’s performance. In all other respects, claims of the Customer for damages on whatever legal grounds, including any claims for damages due to breach of pre-contractual obligations and tort, are excluded.
The above limitations of liability shall not apply to claims of the Customer under the Product Liability Act or in the case of our liability due to the absence of guaranteed characteristics.
Insofar as JDIE’s liability is excluded or limited, this shall also apply with regard to the personal liability for damages of JDIE’s legal representatives, executive employees and other vicarious agents.
§ 10 Intellectual property, secrecy and property rights of third parties
Illustrations, drawings, technical documents, calculations and other documents which JDIE leaves to the Customer (“Documents”) are and remain intellectual property of JDIE; this also applies to such objects which are marked as confidential. The passing on and the disclosure of Documents by the Customer to third parties requires JDIE’s express prior written consent. JDIE shall be entitled to demand that the Documents and their copies be handed over free of charge, if the purchaser no longer requires the Documents or once JDIE becomes aware of any misuse. The Customer shall not be entitled to a right of retention of the documents and their copies.
The Customer is obliged to inform JDIE immediately if the Customer becomes aware of an infringement of intellectual property rights of third parties by goods delivered by JDIE or if the Customer is repremanded for such. If the delivered goods have been built according to designs or instructions of the Customer, the Customer shall indemnify JDIE against all claims asserted by third parties due to infringements of intellectual property rights. Any costs of litigation shall be reasonably paid in advance.
§ 11 Retention of Title
JDIE reserves title to the object of sale until receipt of all payments arising from the business relationship with the Customer.
The Customer shall be obligated to handle the object of sale carefully; in particular the Customer is obliged to insure the object of sale sufficiently at its own expense against fire, water damages and theft at replacement value. To the extent maintenance and inspection work is re-quired, the Customer shall perform these at its own expense in due time.
In the event of seizure or other interventions by third parties, the Customer must notify JDIE immediately in writing so that JDIE can bring an action to safeguard the ownership claims. Insofar as the third party is not in a position to reimburse JDIE for the judicial and extrajudicial costs of such an action, the Customer shall be liable for the loss incurred by JDIE. This shall only apply insofar as such an action is successful and payment by the third party is not made despite request.
JDIE shall be entitled to withdraw from the contract in accordance with the statutory provisions and demand the return of the goods in the event of breach of contract by the Customer, in particular in the event of default in payment or breach of an obligation pursuant to paragraphs 2 and 3 of this § 11.
The Customer shall be entitled to resell the object of purchase in the ordinary course of business; however, the Customer hereby assigns to JDIE all claims in the amount of the final invoice amount (including value added tax) of the claim which accrue from the resale against his customers or third parties, irrespective of whether the object of purchase has been resold without or after processing. The Customer shall remain authorised to collect this claim even after the assignment. JDIE’s authority to collect the claim shall remain unaffected. However, JDIE undertakes not to collect the claim as long as the Customer meets its payment obligations from the proceeds received, is not in default of payment and, in particular, no application for the opening of insolvency proceedings has been filed and no suspension of payment exists. If this is the case, however, JDIE can demand that the Customer informs JDIE of the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment.
Processing or transformation of the object of sale by the Customer is always carried out for JDIE. If the object of sale is processed with other objects not belonging to JDIE, JDIE shall acquire co-ownership of the new object in the ratio of the value of the object of sale (final invoice amount incl. value added tax) to the other processed objects at the time of processing. In all other respects, the same shall apply to the object created by processing as to the object of sale delivered subject to retention of title.
If the object of sale is inseparably mixed with other objects not belonging to JDIE, JDIE shall acquire co-ownership in the new object in the ratio of the value of the object of sale (final invoice amount incl. value added tax) to the other mixed objects at the time of mixing. If the mixing is carried out in such a way that the Customer’s item is to be regarded as the main item, it shall be deemed agreed that the Customer shall transfer co-ownership to JDIE on a pro rata basis. The Customer shall keep the sole ownership or co-ownership thus created in safe custody for JDIE.
JDIE undertakes to release the securities to which JDIE is entitled hereunder at the Customer’s request to the extent that the realisable value of securities exceeds the claims to be secured by more than 10%; the choice of the securities to be released shall be incumbent on JDIE.
§ 12 Place of jurisdiction, Place of performance, Applicable law, Miscellaneous
Place of jurisdiction for all disputes with fully-qualified merchants within the meaning of the German Commercial Code (HGB) and legal entities under public law or special funds under public law will be Munich. The same place of jurisdiction shall apply if the Customer has no general place of jurisdiction in Germany, moves his place of residence or habitual abode abroad after conclusion of the contract or his place of residence or habitual abode is unknown at the time the action is filed. However, JDIE shall be also entitled to sue at the Customer’s place of business.
Place of performance for deliveries and other performances as well as for the Customer’s payments is the seat of JDIE’s principal establishment.
These General Terms and Conditions and all legal relationships between JDIE and the Customer shall be governed by the laws of the Federal Republic of Germany to the exclusion of its conflict of laws provisions. The application of the uniform UN Convention on Contracts for the International Sale of Goods (CSIG) is also excluded.
Should any provisions of these General Terms and Conditions be invalid or unenforceable or become invalid or unenforceable after conclusion of the contract, this shall not affect the validity of the remaining provisions. The invalid or unenforceable provision shall be replaced by a valid and enforceable provision whose effects come as close as possible to the economic objective pursued by the parties to the contract with the invalid or unenforceable provision. The foregoing provisions shall apply mutatis mutandis to any contractual gaps.
This English translation of the General Terms and Conditions is made for convenience purposes only. The German version shall be authoritative.