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GENERAL TERMS AND CONDITIONS (GT&Cs)
Status as of 22/12/2017
1. Scope, choice of law and jurisdiction, Customer’s general terms and conditions
1.1 These GTC are an addendum to the individual agreements concluded between JET-Electronics GmbH (hereinafter referred to as “JET”) and business customers regarding the sale of goods and other services.
1.2 In the event of an individual agreement contradicting the content of the GTC, it shall take precedence over the GTC.
1.3 Besides, the only governing laws shall be those of the Federal Republic of Germany under exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
1.4 Any general terms and conditions of the Customer shall never form part of the content of the Agreement, even if JET fails to explicitly object to them.
2. Offers, orders
2.1 Offers submitted by JET shall be non-binding, unless JET has stated a specific commitment period therein.
2.2 Customer orders shall only become an agreement once confirmed by JET in text form (letter, e-mail or fax).
3. Hazardous use of goods, indemnification
3.1 Unless explicitly agreed otherwise, the goods offered or sold by JET are not suitable and intended for use in life-supporting devices or systems, human implants, nuclear systems, or other systems whose breakdown could cause death or other disastrous consequences.
3.2 The announcement of the Customer’s intention to use goods in systems of the type stated in Section 3.1 also shall not create a liability for JET regarding the suitability of the delivered goods for such use or its consequences.
3.3 The Customer shall hold JET harmless of all third-party claims that may result from the Customer’s non-compliance with the advice given in Sections 3.1 and 3.2 and/or the Customer’s failure to forward such advice to its customers.
4. Partial and excess deliveries, delivery periods, obstacle to delivery
4.1 JET may deliver partial quantities of the goods ordered if such services can be divided up.
4.2 If excess deliveries are useful due to packaging and batch sizes common in the wholesale sector, JET may deliver the corresponding excess quantity to the Customer without charging any extra fees.
4.3 Delivery dates and periods shall be regarded as non-binding planning data, unless specifically agreed otherwise in individual cases.
4.4 Any bindingly agreed delivery periods and dates shall be subject to JET receiving correct deliveries on time. If advance payment has been agreed, any bindingly agreed delivery dates shall further be subject to JET’s receipt of the Customer’s timely payment for the respective delivery.
4.5 Should JET be entitled to request advance payment, any bindingly agreed delivery periods shall only start upon JET’s receipt of the Customer’s full payment for the respective delivery. In all other cases, the delivery periods shall be extended by such time as the Customer defaults significantly on its contractual obligations to JET. The same shall apply to obligations in accordance with Section 321 of the German Civil Code (Bürgerliches Gesetzbuch – BGB) and/or Section 5.5 of these GTC.
4.6 Delivery periods shall also be extended by the time of the obstacle to delivery in the event of the default being caused by force majeure or similar events. The consequences of war, terror attacks, disruptions to the energy or material supply, interruptions to operations, labour disputes, traffic disruptions and official decrees shall be classed the same as force majeure if they (a) occur at the plant of JET or its sub-suppliers after conclusion of the Agreement, (b) JET and its vicarious agents have not committed any acts of gross negligence to partially cause these events, and (c) these events significantly impair JET’s timely performance of the Agreement. JET shall notify the Customer immediately of the start and end of such obstacles, if these are known.
4.7 In the event of JET being prevented from delivering goods for an indefinite period due to an event within the meaning of Section 4.6, JET may withdraw from the Agreement. If JET has already partially fulfilled the Agreement once such events occur, JET may withdraw from the as yet unfulfilled part of the Agreement. If the Customer has made an advance payment on the undelivered goods, JET shall reimburse such payments immediately.
4.8 Section 4.7 shall apply accordingly if JET’s sub-supplier has announced that it is unable to provide a binding date for its delivery to JET despite an existing delivery obligation. Sentence 1 shall only apply if JET has concluded the covering purchase so that JET would have been able to supply the Customer as contractually agreed had JET received the correct delivery itself.
4.9 The Customer may only withdraw from the Agreement on the grounds of JET’s default with regard to the as yet unfulfilled part of the Agreement and only if JET has specified an appropriate period of grace in text form and has failed to act during such period. Sentence 1 shall not apply if (a) the delivery period has been agreed to be fixed, (b) JET’s contractual fulfilment has been explicitly rejected, or (c) the Customer has lost interest in the delivery, in full or part thereof, die to the default.
5. Price components, price changes, call and forward orders, due date, advance payment
5.1 Unless explicitly agreed otherwise, the prices specified by JET shall refer to net value of the goods, in other words they do not include packaging, transport, any insurance required, potential customs duties, and statutory VAT.
5.2 In the event of call or forward orders, the following shall apply if JET’s initial price for goods to be delivered to the Customer more than four months after the conclusion of the Agreement increases by more than 20%: 2JET may increase the price per unit or packaging unit to be paid by the Customer by the amount that JET’s initial price has increased compared with the initial price applicable on the date of conclusion of the Agreement. 3JET shall notify the Customer of any price increases in accordance with Sentence 2 no later than 14 days before the respective delivery date. 4The Customer may terminate the Agreement with regard to those parts of the delivery affected by the price increase within seven days from receipt of notice in accordance with Sentence 3. 5Such termination shall be announced in text form to become effective. 6This shall not affect Section 5.3.
5.3 In the event of call or forward orders, JET may deliver and invoice any goods not yet called at the end of the agreed period if the Customer has not called all of the agreed amount within the agreed period.
5.4 Invoices issued by JET in accordance with the Agreement shall be payable in full upon delivery of the goods. In the event of partial deliveries, the same shall apply for all invoices for partial volumes delivered.
5.5 In accordance with Section 321 BGB, JET may request advance payment or other forms of security for future deliveries. The requirements of Section 321 BGB shall also be deemed to have been met if (a) the Customer has defaulted on payment for an outstanding invoice issued by JET, regardless of such invoice relating to this Agreement or another, (b) a cheque issued by the Customer to JET has not been honoured or has been redebited upon presentation, or (c) a direct debit has not been honoured or redebited to JET.
6. Payment, right of retention, offsetting
6.1 All payment shall be transferred to an account specified by JET.
6.2 The Customer may only enforce a right of retention if it is based on the same Agreement than JET’s receivable.
6.3 The Customer may only offset receivables if its counterclaim has been found to be legally binding before a court of explicitly approved by JET.
7. Retention of title
7.1 All goods delivered by JET shall remain the property of JET until such goods as well as other receivables due to JET for goods delivered to the Customer (hereinafter referred to as: “goods subject to retention of title”) have been paid.
7.2 In the event of the goods subject to retention of title within the meaning of Section 947 and/or Section 950 BGB being combined or processed with other items not owned by JET, the Customer shall herewith assign a co-ownership share in the newly created items to JET, which shall herewith accept such assignment, amounting to the corresponding pro-rata share of the value of the goods subject to retention of title in the sales price invoiced by the Customer to its customers for the newly created item, including VAT. The Customer shall store the newly created items free of charge for JET.
7.3 The Customer may sell goods subject to retention of title within the meaning of Section 7.2 in return for immediate payment or subject to retention of title as long as no insolvency proceedings regarding the Customer’s assets have been applied for or opened. Other dispositions of such goods, particularly assignment of goods as security and seizure, shall not be permitted.
7.4 The Customer shall herewith assign its receivables from the sale of goods subject to retention of title and newly created items within the meaning of Section 7.2, including all ancillary rights, to JET, which shall herewith accept such assignment, in the amount which JET invoiced the Customer for the affected goods subject to retention of title, including VAT.
7.5 In the event of the Customer’s receivables from the sale of the goods subject to retention of title and newly created items within the meaning of Section 7.2 being deposited in a current account, the customer shall herewith also assign its receivables from the current account due from its customers to JET, which shall herewith accept such assignment, in the amount of the value stated in Section 7.4.
7.6 The Customer may collect the receivables assigned to JET until further notice. ²These receivables may only be assigned or pledged with consent issued by JET in text form. 3In the event of the Customer having rights in accordance with Section 5.4 of these GTC, the Customer shall, upon JET’s request, (a) notify the debtors of the assignment in text form, (b) provide JET with all information, and (c) provide and send all documentation required for enforcing a legal claim. 4JET may also directly notify the debtor of the assignment.
7.7 In the circumstances specified in Section 7.6 Sentence 3, the Customer shall provide JET with a detailed list of goods affected, separate such goods, and return them to JET if JET has withdrawn from the Agreement.
7.8 In the event of the value of the securities agreed herein exceeding the amount of JET’s receivables by more than 15%, JET shall release any excess securities upon the Customer’s request. JET may choose the securities to be released at its discretion.
7.9 The Customer shall notify JET immediately and in writing of any third-party access to the goods subject to retention of title, including newly created items in accordance with Section 7.2 and the receivables assigned to JET, and provide JET with any support required for implementing measures for securing and enforcing JET’s respective rights.
7.10 The Customer shall carry the costs for fulfilling the above duties to cooperate when enforcing all rights arising from the retention of title as well as all costs incurred for maintaining and storing the goods.
8. Packaging, dispatch, risk transfer
8.1 Goods shall be packaged in accordance with the standard requirements of the retail and wholesale industries. JET may choose the type of dispatch at its discretion.
8.2 The risk shall be transferred to the Customer as soon as the goods leave the JET warehouse, or the warehouse of JET’s sub-supplier in the event of a direct delivery. The Customer shall carry the risk for all consignments, including possible returns, during transport, unless returns are sent within the scope of JET’s warranty.
9. Delayed approval
9.1 In the event of the Customer being delayed in the approval of goods, JET may store the goods at the risk and cost of the Customer. JET may engage a freight forwarder or warehouse keeper for this purpose.
9.2 The Customer shall pay JET 1% of the purchase price per month, but no more than EUR 30 per month, as a fixed storage fee for the duration of the delay. 2The Customer may provide evidence that JET has incurred no, or significantly less, damage than the fixed fee. 3JET’s claim for compensation for any damage in excess of the fixed fee shall remain unaffected.
9.3 In the event of the Customer refusing to approve the goods once the statutory period of grace has expired, or declares its intention not to approve the goods prior to this date, JET may refuse fulfilment and claim damages for non-fulfilment. JET may choose, at its discretion, to claim compensation in the form of a fixed sum of 25% of the agreed price or reimbursement of the actually incurred damage. Section 9.2 Sentence 2 shall apply accordingly.
10. Inspection and notification of defect, physical defects, warranty
10.1 The Customer shall inspect all incoming deliveries immediately for completeness and the goods for properties and defects. 2Following such inspection, the Customer shall notify JET immediately and in text form of any short deliveries and discernible defects and provide details on the occasion, type and scope of the complaint. 3Sentence 2 shall apply accordingly upon discovery of defects that could not be detected despite inspection in accordance with Sentence 1. 4The delivery shall be deemed to have been approved if notification of short delivery or physical defects is not made on time or in the manner prescribed.
10.2 In the event of the Customer, or any third parties not explicitly authorised by JET to do so, modifying or repairing the goods, JET’s warranty for defects shall be void, unless the Customer proves that the modifications and/or repairs neither caused the defect nor unreasonably impair the professional rectification of defect.
10.3 JET shall rectify defects justly notified in accordance with Section 10.1 by delivering replacement goods. The Customer shall grant JET the discretionary time and opportunity required for subsequent fulfilment. After at least two unsuccessful attempts at subsequent fulfilment, the Customer may, at its discretion, reduce payment or request the rescission of the Agreement, if the defect is material.
10.4 1If it is found that goods purchased by JET from a third party and delivered in an unaltered condition to the Customer originate from a manufacturer other than the one stamped on the goods or their packaging or that they have otherwise been counterfeited by a third party, JET may withdraw from the Agreement with the Customer for these goods. 2Should, in the event of Sentence 1, the counterfeit affect only part of the goods covered by the Agreement, JET may withdraw from the part of the Agreement pertaining to the counterfeited goods. 3In the event of the Customer losing interest in the remaining goods covered by the Agreement due to the partial withdrawal of JET in accordance with Sentence 2, the Customer may withdraw from the entire Agreement. 4In the event of withdrawal, JET shall immediately reimburse the Customer’s payments for the affected goods. 5Sentence 4 shall only apply to the goods affected by the Customer’s withdrawal in accordance with Sentence 3 once the goods have been returned to JET. Sentences 1 and 2 shall not apply if JET was aware of the counterfeit or was unaware of it due to gross negligence.
10.5 Warranty claims against JET on the grounds of short deliveries or physical defects shall expire by limitation after one year, unless JET is liable for the defects on the grounds of malicious intent or gross negligence or if JET has maliciously concealed them. Section 445b Paragraph 2 BGB and Section 478 Paragraphs 1 and 3 BGB shall remain unaffected.
10.6 As for the rest, Sections 11.1, 11.3 and 11.5 shall apply accordingly to warranty claims.
11. Limited liability, prohibition of assignment
11.1 Claims for damages against JET on the grounds of culpability during the contractual negotiations, illegal actions and services not performed at all or not as agreed shall be excluded, unless they are based on acts of fraud, malicious intent or gross negligence in which JET played a part or which resulted in injury to life, limb and health of a person and were discernible to JET and avoidable. Except in the special cases stipulated in Sections 439 Paragraph 3 and Section 445a Paragraphs 1 and 3 BGB, JET shall not assume any liability to the Customer for subsequent damages to the Customer’s other assets caused by defective goods delivered.
11.2 Claims for compensation for any financial losses that may have to be reimbursed by JET that are not based on acts of fraud or gross negligence performed by JET shall expire by limitation after one year. The statute of limitation shall commence at the end of the year in which the claim arose and the Customer obtained knowledge of the circumstance on which the claim is based, or would have had to obtain such knowledge if no act of gross negligence has been performed.
11.3 Sections 11.1 and 11.2 shall apply accordingly to claims for compensation for expenses in accordance with Section 284 BGB.
11.4 Sections 11.1 to 11.3 shall not apply to claims arising from any guarantees of quality issued by JET and claims for damages based directly on product liability law.
11.5 Claims against JET shall not be assigned.
12. Labels, property rights
12.1 Any modification or removal of a label on goods delivered by JET and any stamp or other marking of such goods that are classed as a statement of origin of the Customer or third party or may give the appearance that the goods are special goods shall be prohibited.
12.2 The Customer shall notify JET immediately and in text form of any claims for violations of property rights being enforced against the Customer in connection with the goods delivered by JET. JET shall hold the Customer harmless of claims arising from violations of third-party property rights if (a) JET is responsible for such violation of property rights, (b) the alleged violation of the law applies exclusively to the goods delivered by JET without there being any connection to other products, and (c) the Customer immediately facilitates and assigns the clarification of such disputes with the claimant to JET and, if required, also the lawyers engaged by JET.
12.3 In the event of third parties enforcing claims arising from property rights against the Customer in connection with goods delivered by JET, JET may choose, at its own discretion and cost, obtain a license for the goods delivered or replace the goods delivered with goods not subject to property rights. Should JET be unable to do so due to legal or technical reasons, or should it be unreasonable for JET to do so from an economic and sensible point of view, JET shall accept the return of the goods in return for the reimbursement of the purchase price. JET shall only assume liability for any further-reaching claims of the Customer in accordance with Section 11.
12.4 JET shall not issue any guarantees that the application of the goods sold do not violate any third-party property rights.
12.5 For goods specially manufactured in accordance with the Customer’s specifications, JET shall not issue any guarantees that these goods or their use do not violate any third-party property rights. Sentence 1 shall also apply if JET was involved in developing, or developed, special goods in accordance with the Customer’s specifications.
12.6 As for the rest, Section 11 shall apply accordingly to any claims raised by the Customer against JET on the grounds of a violation of property rights.
13. Place of jurisdiction
The place of jurisdiction for all disputes arising from or in connection with the contractual relationship, including withdrawal, shall be Munich, Germany. However, JET may also initiate proceedings before the courts in the location of the Customer’s head office.