General Terms and Conditions of Jarltech Europe GmbH
as of 21 February 2018
Sales of our products are governed exclusively by the following terms and conditions, even if we fail to refute contrary purchasing terms of the customer in individual cases. Even if previously objected to, our general terms and conditions are deemed to be recognised by the customer without reservation when delivery of our products is accepted. Contrary terms are ineffective without our prior express written consent. Our terms and conditions also apply to all future business transactions with the customer.
2. Offers and prices
Our offers are non-binding. We reserve the right to increase our prices accordingly if cost increases arise after the contract is entered into. We will produce documentary evidence of these to the customer upon request. Verbal price and delivery information from employees is always non-binding.
3. Dispatch and transfer of risk
Unless the order confirmation contains a provision to the contrary, delivery is ex works from Usingen. Dispatch is carried out at the expense and risk of the customer.
4. Delivery dates
If an agreed delivery date is not met and the customer allows a reasonable additional period of grace to no effect, the customer is then entitled to withdraw from the contract. The customer is only entitled to claim compensation for damage or loss if the default is attributable to wilful intent or gross negligence. Such claims are limited to 50% of the damage or loss incurred. Fulfilment of our supply commitments is conditional on the timely and proper performance of the customer's obligations.
5. Payment, offsetting, retention
Statutory value-added tax is not included in our prices. It is shown separately on the invoice at the statutory rate as of the invoice date. In the case of late payment, default interest at a rate of 5 percent points p.a. above the base interest rate which the German Federal Bank publishes in the federal gazette is payable. If we are able to prove that the damage or loss is greater than this, we are entitled to claim this. If, after confirmation of the order, circumstances come to our attention which justify doubts about the creditworthiness of the customer or the customer is in arrears with other liabilities, we are entitled to make the delivery of this and further orders conditional on payment in advance. The customer is only entitled to offset counterclaims which are recognised by declaratory judgment or which are undisputed or recognised by us. The customer has no right of retention on the basis of disputed counterclaims.
6. Retention of title
Goods supplied (goods subject to retention of title) remain our property until complete payment of the purchase price and of all existing and future claims (including all current account balances) resulting from our business association with the customer is received. Goods subject to retention of title may be sold by the customer in the proper course of business. The customer's accounts receivable from its customers as the result of resale are assigned to us when the goods subject to retention of title are resold. The customer is entitled to collect such accounts receivable until this entitlement is revoked. Our authority to collect the accounts receivable ourselves is not affected by this. We undertake, however, to refrain from collection provided that the customer meets its payment obligations, is not in default with payment and, in particular, no application has been filed for insolvency proceedings and no cessation of payment has taken place. In such an event, we are entitled to demand that the customer divulges the assigned accounts receivable and details of the relevant debtors. In this case we are entitled to notify these debtors about the assignment. If the item purchased is processed by the customer, this is carried out on our behalf. We acquire joint title to the new item in proportion to the value of the item purchased compared with the value on the processing date of items jointly processed. The above rights of security will be relinquished upon request by the customer if and to the extent that the value of the security exceeds the value of the secured claim by more than 20%. Attachment or other third-party interference prejudicial to our rights must be notified to us in writing without delay. The assertion of the retention of title, as well as the attachment of the item supplied by us, will not be regarded as cancellation of the agreement. The transfer of control of the goods delivered by us to the end customer in the case of foreign deliveries only takes effect when the goods have left Germany, in accordance with § 3 paragraph 1 of the German VAT Act (USTG).
If Jarltech delivers to the customer on account, direct debit or automatic debit transfer, Jarltech transfers its claim to Deutsche Factoring Bank GmbH & Co KG, 28195 Bremen according to its factoring contract. In this case payments can only be made to an account of Deutsche Factoring Bank. This does not apply, however, in case of payment by credit card or advance payment.
8. Information and advice, Internet
All written and verbal statements about the suitability and possible applications of our products are made to the best of our knowledge. They represent only our findings through experience, however, and do not constitute promises. On the contrary, the customer must carry out his own tests to ensure the suitability of the products for the intended purpose. Information from our brochures, technical documents and internet site are subject to errors and technical changes, which do not reduce the overall practical value of the product, as well as colour deviations. Specifications change without notification to the customer.
The goods supplied must be promptly inspected by the customer with regard to quantity and quality, and any complaints must be notified without delay (§ 377 HGB – commercial code). If the item purchased contains a defect for which we are responsible, we are entitled at our own discretion to repair the defect or supply a replacement. If we are not willing or able to do so, or the repair or replacement is not satisfactory, the customer is entitled at his own discretion to withdraw from the contract or demand a reduction in the purchase price. We do not give the rights of repair or replacement for insignificant defects. In the absence of a contrary provision hereinafter, further claims by the customer for whatever legal reason are excluded. We are therefore not liable for damage or loss apart from the actual item supplied. In particular, we are not liable for lost profit or other financial losses of the customer. This restriction of liability does not apply if the cause of the damage or loss is attributable to wilful intent or gross negligence, or if the customer has a claim for damages for non-performance as the result of the absence of a promised characteristic. The liability for culpably caused physical damage is not limited. We are liable for bodily injuries or property damages on privately used objects in compliance with the product liability code. All warranty claims are dropped if modifications to the goods supplied are carried out by third parties or the goods are processed. The warranty excludes defects resulting from improper use, including the use of unsuitable accessories or unsuitable materials. Warranty claims expire 12 months after delivery of the goods.
10. Restriction of liability / statute of limitation
In the absence of contrary provisions in the above, all liability, including in particular liability for faults in conclusion of the contract, non-performance or defective performance and liability for consequential or indirect damage or loss, is excluded. For the loss of data and programmes, or their recovery, we are also liable only to the extent specified in Paragraph 10, and only insofar that this loss would not have been avoidable through appropriate precautionary measures taken by the customer, in particular the creation of backup copies of all data and programmes, as well as the execution of “accuracy checks”. All claims of the purchaser are subject to a statute of limitation of 12 months. In case of wilful or fraudulent behaviour or claims according to the product liability code the legal time limits apply.
11. Copyright tax
If the invoice does not contain an explicit reference to the copyright levy for a specific device or storage medium, the purchaser shall release Jarltech from claims from a copyright collective for copyright levy for the products he purchased from Jarltech. In the event that a copyright collective files a claim against Jarltech, the purchaser is obliged to pay Jarltech the copyright levy which Jarltech paid for the products that were purchased by the purchaser, as well as to refund any further damages incurred by Jarltech, including all reasonable costs for legal defence.
12. Demo devices
If products or materials are supplied to a contractual partner on loan or for trial (“demo devices”), they remain the property of Jarltech. Jarltech has the right to demand the return of the demo devices at any time within ten days. If the contractual partner fails to comply with this obligation, the products are deemed to have been purchased at the list price that was valid on the day of the deadline.
13. Obligation of access data confidentiality and monitoring
The customer is obliged to keep his access data in the form of his user name and password secret, and to protect them against unauthorised access by third parties. He is also responsible for the confidentiality of the access data by employees and will instruct his employees accordingly. The customer shall notify Jarltech immediately if he suspects or confirms unauthorised use of his access data.
14. Liability of the customer for unauthorised use of access data
The customer is fully liable for damage caused to Jarltech by the unauthorised use of his access data if and insofar as the customer culpably violates his aforementioned obligation to monitor and keep his access data confidential.
15. Place of performance, jurisdiction and applicable law
The place of performance and jurisdiction is, as far as permissible, Frankfurt am Main, Germany. German law applies exclusively. The CISG (Convention of the United Nations of 11 April 1980 concerning Contracts for the International Sale of Goods) is excluded.
16. Individual agreements
Individual agreements take precedence over these General Terms and Conditions, if they are in written form.
Failure by Jarltech to exercise rights does not constitute a waiver of such rights. The ineffectiveness of individual provisions does not affect the binding nature of these General Terms and Conditions in other regards.
The Jarltech one-click service contracts are subject to our extended terms and conditions.
They are available on www.jarltech.com/1klickagb.