§ 1 Validity of these provisions
- Our goods and services shall be offered and supplied under these General Terms and Conditions of Business exclusively. They therefore apply to all future business relationships even if they have not been expressly agreed. The customer shall be deemed to have declared his agreement to these General Terms by accepting our offer. If the customer accepts our offer on different terms, our General Terms shall still apply exclusively even if we raise no objection. Deviations thus only apply if we have expressly accepted them in writing. If the customer is not in agreement with these arrangements, he shall point this out expressly in a separate letter. In any such event we reserve the right to withdraw the offer without any possibility of claims of any kind whatsoever being brought against us.
- Our General Terms shall also apply if we supply goods and/ or services to the customer without reservation even though we are aware of any terms of the customer that contradict or deviate from our General Terms.
- Our General Terms and Conditions of Business only apply in accordance with article 310 Sect. 1 of the German Civil Code.
§ 2 Offers and contracts
- Our offers, deliveries and services are intended solely and exclusively for merchants in accordance with article 14 of the German Civil Code. The customer assures that he is a merchant. Our offers are free and non-binding unless anything to the contrary is stated in the confirmation of order.
- If the customer’s order is subject to qualification within the meaning of article 145 of the German Civil Code, the customer shall be bound to this offer for 1 week. In case of order placements in our online shop, the customer places a binding order for the items contained in the shopping basket by clicking the “Purchase” button, to which he shall be bound for 1 week. Acknowledgement of receipt of the order will be made immediately by email, fax or letter after the order is received.
- A binding contract shall become effective on forwarding of the confirmation of order; at the latest however on delivery of the ordered goods. We shall undertake to notify in writing of any refusal of the order immediately after clarifying deliverability by email, fax or letter.
- Drawings, illustrations, measurements, weights and other output data can be changed in response to operational requirements to the necessary extent provided this has no negative impact on the value of our goods. Such changes shall only be impossible if the factor concerned has been specifically identified as binding.
- We shall retain ownership and copyright over illustrations, drawings, costings, cost estimates and other documentation, and these shall not be made accessible to any third party. This shall in particular apply to such documentation as is identified as “confidential“. The customer shall not pass them on to any third party without our express consent. Illustrations, drawings and other documentation pertaining to offers shall be returned to us without delay on request if the order is not placed with us.
- We reserve the right to correct and recalculate obvious errors and deviations in price lists, invoices and confirmations. The customer shall bear the risk of transmission errors.
- If the customer has to supply documentation such as drawings, samples, models or the like, he shall be responsible for their correctness, technical viability and completeness; we shall not be under any obligation to check them. The customer shall also bear liability for ensuring that no third party’s rights are violated by the use of such documentation, and shall absolve us and hold us harmless from any disadvantages that could accrue to use through any such violation.
§ 3 Extent of the obligation to deliver
- Our written confirmation of the order, if issued, shall be decisive for the content and quantity of the goods and/ or services that we are to deliver. We shall be entitled, however, to make use of a technical design or a material deviating from the order confirmation, without discussing the point with the customer, provided this does not result in any deterioration of the goods and/or services.
- Protective devices shall be delivered with the goods to the extent that these are statutorily prescribed or expressly agreed. The customer shall be under an obligation to inform us of the regulations on environmental protection and accident prevention in force at the place of installation. The price shall be deemed not to include the cost of such devices unless anything to the contrary is stated in the confirmation of order. The customer shall be responsible for ensuring adherence to the regulations on environmental protection and accident prevention in force at the place of installation.
§ 4 Prices / terms of payment
- In the absence of any separate agreement to the contrary, our prices shall apply “ex-works“ including loading onto a vehicle at our works but not including packing and shipping.
- Our prices do not include the statutory Value Added Tax, which shall be added at the statutory rate in force on the date of invoice and shown separately in the invoice.
- The customer shall bear all costs associated with transportation, including insurance.
- We ship solely through UPS. Please refer to our homepage www.joke-technology.com for the shipping costs. In case of goods that owing to their size and/or weight can only be dispatched by haulier, shipping is performed through the haulier Dachser. Please refer to our homepage www.joketechnology.de for the shipping costs.
- The deduction of trade discounts is subject to written agreement.
- We accept payment by invoice as the method of payment. We shall nevertheless expressly reserve the right, particularly in case of new customers, to deliver only against payment in advance. In the absence of any agreement to the contrary, payment shall be made net of any deduction fee within 14 days of the invoice date. In case of delivery against prepayment, the customer shall undertake to pay the purchase price plus packing in addition to delivery and shipping costs without any deduction within 7 days at the latest following receipt of the notified payment request. The account details will be transmitted together with the payment request.
- Should the customer fall into arrears of payment, the statutory provisions apply. Thereafter, we shall be entitled to charge annual interest on the arrears at a rate 8 percentage points above the basic annual interest rate. If we are able to demonstrate that we have suffered any greater loss through the arrears we shall be entitled to make the corresponding claim.
- The customer shall not be entitled to any right of offset unless his counter-claims have been established by a court, are undisputed or acknowledged by us. The same shall also apply to assertion of a right of retention owing to such counter-claims, insofar as these claims are not based on the same contractual relationship.
- The customer shall bear all taxes, fees, and other charges incurred outside the Federal Republic of Germany. The customer shall also ensure that he obtains at his own expense all necessary forms of official authorisation, meaning import licences in particular.
§ 4a Invoice
- We reserve the right to send the invoice document in electronic form for logistic reasons. The invoice is dispatched by email in this case to the email address indicated by the customer and is free of charge. The buyer must ensure that all electronic invoices sent by us can be properly delivered. The buyer shall undertake to inform us – joke Technology GmbH, Asselborner Weg 14-16 in D-51429 Bergisch Gladbach, email address: firstname.lastname@example.org, Fax: +49 (0) 2204 839 426 immediately in writing or in text form of any change in the email address to which the invoices are to be delivered.
§ 5 Procurement risk
- We shall not assume any procurement risk, including in case of a purchase agreement involving generic goods. We shall only undertake to deliver from our goods on hand and from the consignments ordered from our suppliers.
§ 6 Delivery period
- The details concerning delivery periods in our online shop are to be regarded as estimated delivery times. The delivery period shall be set by mutual agreement. Unless anything to the contrary has been agreed, it shall start on the date on which the order is confirmed but in no case before the documentation and data that the customer is to provide and the approval that he has to give have been received, as well as any instalment payment, and he has met any other agreed obligations.
- The delivery date shall be deemed to have been met if the goods on order have left the works by that date or the customer has been informed that they are ready for collection.
- A delivery deadline confirmed by us shall always be subject to the proviso of correct, complete and prompt self-delivery. The obligation to deliver on our part shall not apply if, despite having entered into a congruent covering transaction, we ourselves have not received correct and prompt delivery by no fault of our own, we have immediately informed the customer of the fact and we have immediately reimbursed any prepayment.
- The delivery period shall be extended, even if delivery is already in arrears, by an appropriate length of time if any unforeseeable impediment occurs that we could not avert even with all the circumspection called for in the circumstances of the case. It shall make no difference here whether the impediment occurs in our works or in the works of any of our suppliers. Impediments within the meaning of the foregoing sentences shall include, for instance, interruptions to operations, intervention by the authorities, difficulties with energy supplies, delays in the delivery of essential raw and construction materials, strikes and lockouts, mobilisation, warfare, riots, terrorist attacks, and diseases. The customer shall be informed without delay of the beginning and end of any such impediments.
- If the impediment to performance in the aforementioned cases persists for a period exceeding 4 weeks after the originally applicable delivery periods, the customer shall be entitled to withdraw from the contract. Any further claims, particularly for damages, shall not exist. If the consequence of any events such as those described in sub-clause 5.4 above is that supply becomes substantially more difficult or impossible for us or for our sub-suppliers, we shall be entitled to cancel the contract. The customer shall be entitled to require us to inform him whether we will be able to deliver within a reasonable length of time or intend to cancel the contract.
- Should the customer suffer any loss on account of a delay culpably caused by us, he shall be entitled to require compensation for arrears to the exclusion of any further claims. The foregoing shall have no impact on our right to cancel the contract under subclause 11.3 of these General Terms. The compensation for arrears shall amount to 0.5 percent of the value of that part of the goods and/or services that on account of the delay cannot be used on time, or not in compliance with the contract, for each full week of arrears after the expiry of a 2-month period of grace, subject to a cumulative maximum of 5 percent. If we are found to have acted with intent or gross negligence or the delay of delivery is found to be due to a culpable breach of an important contractual obligation, we shall be liable in accordance with the statutory provisions; if one of our legally authorised representatives or vicarious agents can be charged with having acted in such a way, the liability that we bear shall be unlimited. Provided the delay of delivery in such cases is not due to a deliberate breach of contract on our part, our liability for damages shall be limited to the foreseeable, typically incurred loss.
- If despatch is postponed at the customer’s request, he shall be charged for all resulting costs for the storage of the goods on our premises, starting one month after the notification that the goods are ready for despatch and subject to a maximum limit of 0.5 percent of the invoice amount, for each month or part thereof. We shall be entitled, if we set a reasonable extension period that expires without effect, to make other use of the goods and to supply the customer within a reasonably extended delivery period. We reserve the right to make further claims, particularly with regards to higher damages including possible additional expenditures.
§ 7 Acceptance of goods supplied
- The customer shall accept the goods supplied, even if they display insignificant defects, without prejudice to his rights under clause 8 below. 2. We shall be entitled to deliver part-consignments within reasonable bounds.
§ 8 Transfer of risk
- Unless otherwise agreed as part of the order confirmation, delivery shall be “ex works”. This also applies to part-consignments in accordance with sub-clause 7.2 above or if we undertake further performances, such as cost for shipping, delivery and installation. The risk of accidental loss and accidental deterioration of the goods shall be transferred on handing over to the customer and in case of sale by dispatch, on issue of the goods to the haulier or to the person or institutions specified for shipping the goods.
- If the customer so requests, we shall insure the consignment at his expense against theft, breakage and damage by fire or water and any other insurable risks.
- If the customer defaults acceptance or culpably violates his obligation to otherwise co-operate, risk of accidental loss or accidental deterioration of the purchased goods shall be transferred to the customer on the date on which the default or violation occurred.
§ 9 Guarantee liability for defects and deficiencies
- We shall bear liability for defects and deficiencies to the exclusion of any further claims and without prejudice to any right the customer may have under these General Terms to cancel the contract (see sub-clause 11.4 below).
- We shall bear guarantee liability for defects and deficiencies in the goods we supply only to the extent that they arise during the correct and proper use of the goods and under the operating conditions prescribed for them and are caused by circumstances occurring prior to the transfer of risk, in particular for faulty design or defective workmanship. Defects or damage caused by improper treatment, tampering, unauthorised alterations or the incorrect installation of the goods by the customer or any third party shall be excluded from the guarantee liability. The same shall apply to defects and damage caused by excessive loads, unsuitable operating material, imperfect building activities, unsuitable foundations, or any chemical, electrochemical, or electrical factors not provided for in the contract.
- The prerequisite for the customer’s claims under the guarantee shall be that the customer shall immediately inspect the goods for defects and notify us of obvious defects in writing within a period of 2 weeks as and from receiving the goods. The presence of concealed defects is to be reported within a period of 2 weeks as and from discovery of the concealed defects. Otherwise, assertion of guarantee claims shall be excluded. Timely forwarding of the notification of defects shall be sufficient for compliance with the deadline. The customer shall bear the full burden of proof for all prerequisites for claims, particularly for the defect itself, for the time at which the defect was detected and for the accuracy of the notice of defects. Notices of defects will only be accepted by us if communicated in writing.
- If a defect is unjustified the customer shall bear the costs. If a defect has been identified for which we are responsible, we shall be entitled at our discretion to rectify it or to supply replacement goods. In the event of rectification, we shall bear no costs over and above the purchase price. We shall likewise bear no costs that arise as a result of the goods having been taken to some other place than the place of execution. Furthermore, we shall be entitled, if an attempt at improvement is of no avail, to make a further attempt at improvement, once again within an appropriate period. Only if the second attempt at improvement is of no avail shall the customer be entitled to withdraw from the contract or reduce the purchase price. Replaced parts shall become our property.
- The customer shall provide sufficient time and opportunity for the rework or the replacement delivery as appears necessary in fair judgement. Should he fail to do so, we shall be released from our guarantee liability. The customer shall have no right to rectify the defect himself or to arrange for a third party to do so and to request us to reimburse the resultant costs, except in cases in which operational safety is endangered and/or if such action is necessary in order to avert disproportionately greater damage. In any such event he shall notify us immediately of the nature and extent of the defect.
- The customer shall have no claims over and above the foregoing and in particular no claim for damages that have not arisen from the goods or services themselves that we have supplied. If the customer claims for damages based on intent or gross negligence, including intent or gross negligence on the part of our representatives or vicarious agents, or if we have culpably violated an important contractual obligation, we shall be liable in accordance with the statutory provisions. Provided we are not accused of deliberate breach of contract, our liability shall in such cases be limited to the foreseeable, typically incurred loss.
- This does not affect liability concerning culpable damages to life, body or health, including compulsory liability in accordance with the German Product Liability Act and in the event that we fraudulently conceal a defect or have undertaken a guarantee.
- In the absence of any specific agreement to the contrary, the guarantee period shall be 12 months counting from the date of the transfer of risk. In the case of a claim to damages for delivered goods according to articles 478, 479 German of the Civil Code, the statutory period of limitation is not affected; it is five years counting from the date of dispatch of the faulty goods.
- The terms set out above shall also apply if any rework or replacement parts prove to be defective. 9. All guarantee claims shall be ruled out if the goods supplied were not newly manufactured or the service provided was not newly rendered.
§ 10 Other claims for damages
- There shall be no liability for damages over and above the foregoing provisions, regardless of the legal nature of any claim that may be raised. The foregoing shall apply in particular to claims for damages under culpa in contrahendo, other cases of breach of duty or tortious claims for reimbursement for loss of property in accordance with article 823 of the German Civil Code.
- As far as our liability towards the customer or third parties is excluded or limited, this shall also apply with regards to the personal liability for damages of our staff, employees, associates, representatives and vicarious agents.
§ 11 Customer’s right to cancel the contract
- The customer can cancel the contract if, prior to the transfer of risk, it becomes finally impossible for us to deliver the entirety of the goods ordered. The customer can also cancel the contract if it becomes impossible to supply the whole number of similar goods and he has a legitimate interest in refusing a part-consignment; if this is not the case, the customer shall be entitled to reduce the consideration accordingly.
- If the situation of impossibility arises during arrears of acceptance or from circumstances for which the customer is responsible, he shall still be under the obligation of consideration.
- If we fall into arrears of performance the customer shall be entitled to set us a suitable extension period and declare expressly that he will refuse to accept the goods and/or services if this extension period expires to no avail. If it does so expire, the customer shall be entitled to cancel the contract.
- The customer shall also be entitled to cancel the contract if we allow a reasonable extension period that has been granted to us to expire to no avail for the rework or replacement of parts that are defective for reasons for which we are responsible. The customer’s right of cancellation shall also exist in other cases in which attempts at rework or replacement have proved fruitless.
- The customer shall only have the right to declare the cancellation of the contract if his interest in the goods and/or services is seriously diminished. Such loss of interest shall not be deemed to be serious if the customer continues to make use of the goods and/or services.
- Withdrawal on the part of the customer shall be excluded if the latter is solely or predominately responsible for circumstances that would entitle the customer to withdraw or the circumstance entitling to withdrawal has occurred during default of acceptance.
§ 12 Retention of title
- All the goods and material that we supply shall remain our property until all outstanding accounts have been settled in full including ancillary accounts, claims for damages and the clearing of cheques and bills-of-exchange. This retention of title shall remain in force even if we include individual accounts receivable in a current account and the balance has been struck and acknowledged.
- The foregoing shall also apply to deliveries abroad. If the statutory regulations of the destination country do not permit retention of title in the form described above, the customer shall be under an obligation to provide collateral of the same value for all accounts receivable from him.
- If we have given our consent at the time of entering into the contract to the customer assigning title over the goods and material that we are to supply to a third party who is financing the purchase by providing a loan or in any other way as collateral for these financial facilities, the customer shall be deemed to be transferring to us here and now his entitlement to the objects delivered in the event of our account receivable from him not yet having been settled in full at the point in time when the third party providing the finance has to release the collateral title. The entitlement in rem shall be of such an extent that the objects delivered revert to the retained title to secure the balance of our receivable account.
- The customer shall be under an obligation to co-operate in any measures that we take to protect our property or comparable rights in lieu over the objects delivered. He shall not be permitted to pledge the objects delivered, nor to assign title as collateral. In the event of their being attached, confiscated or otherwise disposed over by third parties, the customer shall inform us without delay and shall send us copies of the relevant disposal documents.
- The customer shall undertake to treat the purchase item with care for as long as ownership has not yet been transferred to the customer. We shall be entitled to insure the objects delivered, at the customer’s expense, against theft and damage by fire, water, or any other factor, unless the customer can show that he has taken out such insurance himself. In the event of the customer taking out the insurance, we shall be entitled to check that the insurance cover is adequate by enquiring from the insurance company concerned.
- In the event of the customer violating the contract, meaning in particular if he falls into arrears of payment or culpably allows the deterioration of the object delivered, we shall be entitled, after issuing a warning, to take the object back and the customer shall be under an obligation to surrender it.
- As long as the object delivered is still under our retention of title, the customer shall not be entitled to resell it without our consent. If we have given our consent, the customer shall inform the relevant third parties of our retention of title. He shall not sell the object without sustaining the retention of title.
- If the value of the securities according to the above paragraphs of this section exceed the amount of the still pending claim thereby secured, after deduction of the hedging costs, by more than 20% for a foreseeable period, the customer shall be entitled to call for release of securities insofar as the amount is exceeded.
§ 13 Place of execution
- The place of execution for all obligations under this contractual relationship shall be our place of business in Bergisch Gladbach.
§ 14 Venue
- The venue for all legal disputes that may arise out of the contractual relationship, including its creation and validity, and including disputes over cheques and bills-of-exchange, shall be the court geographically responsible for our place of business. However, we shall reserve the right to raise an action before any competent court including the one geographically responsible for the customer’s head office.
§ 15 Applicable law
- The contractual relationship shall be subject to the laws of the Federal Republic of Germany to the exclusion of the Uniform Law on the International Sale of Goods.
§ 16 Partial invalidity
- Should any individual provisions of this contract be or become invalid or void, the validity of the remaining provisions of this contract shall not be affected as a result. Agreements deviating from the aforementioned provisions or additional agreements shall only be valid in the form of a written additional agreement to the contract concluded between the parties, in which reference is made to the amended conditions. Waiving this requirement for the written form shall also require being in writing.