General Terms and Conditions of Delivery and Service
JUMO GmbH & Co. KG
36039 Fulda, Germany
Phone: +49 661 6003-0
Fax: +49 661 6003-500
Private Limited Company, Registered Office: 36039 Fulda HRA 302
Shareholder: M. K. JUCHHEIM GmbH, Registered Office: 36039 Fulda, Judicial Register Fulda HRB 17
Managing Directors: Dipl.-Ing. Bernhard Juchheim, Dipl.-Kfm. Michael Juchheim
Allgemeine Liefer- und Leistungsbedingungen zum Download (PDF 169 kB) Ausgabe 10/2018
1. Area of applicability
- The following General Terms and Conditions of Delivery and Service apply to all our deliveries and services. The General Terms and Conditions of Delivery and Service (hereinafter: "Terms and Conditions") apply exclusively; we do not acknowledge the customer's terms and conditions which are contrary or which differ from these Terms and Conditions unless we expressly agree in writing to them. These Terms and Conditions shall also apply even if we carry out deliveries or services for the customer without reservation in the knowledge of the customer's terms and conditions which are contrary or which differ from these Terms and Conditions.
- Our employees are not authorized to conclude verbal agreements, verbal amendments to these conditions, or to make other verbal agreements.
- Apart from these General Terms and Conditions of Delivery and Service, the "Supplementary clauses: For the industrial automation (drive, measure, switch, steer)", available at www.jumo.net, shall apply as well to the transfer of software.
- These conditions shall only apply to enterprises as defined in Section 310 para. 1 of the German Civil Code (BGB).
- The respective version of these General Terms and Conditions of Delivery and Service shall also apply to future contracts concerning the delivery of moveable goods with the same client, without having to refer to them again in each case; we shall immediately inform the customer of changes to these Conditions.
- Individual agreements concluded with the client in individual cases (including side agreements, addenda and amendments) shall have priority over these General Terms and Conditions of Delivery and Service in every case. A written contract or our written confirmation shall apply to the content of these agreements.
- Legally material declarations and notifications, which have to be submitted to us by the client after conclusion of the contract, require the written form in order to be binding.
2. Offer and order confirmation
- Our offers are non-binding. The extent of our duty of performance is specified solely by our written order confirmation.
- The details concerning the delivery item or service (hereinafter: "delivery item") (e.g. weights, dimensions, values in use, load-bearing capacity, tolerances, and technical details) as well as representations of same (e. g. illustrations and drawings) are only approximately applicable insofar as the usability for the contractually envisaged purpose does not require a precise agreement. These are not guaranteed features, but instead descriptions or designations of the delivery. Normal deviations and deviations, which are made on the basis of legal provisions or which represent technical improvements, as well as replacing components with equivalent parts, are permissible insofar as they do not affect the usability for the contractually envisaged purpose.
3. Copyright and retention of title to drawings, etc.
- We reserve ownership of drawings, sketches, cost estimates, and other documents enclosed with our offers and order confirmations. The customer may only use them for the agreed purpose, and may not reproduce them or make them accessible to third parties without our consent. Upon request, these documents themselves and all reproductions shall be returned to us.
- Insofar as these documents are copyrightable, we also reserve our copyright to these documents.
4. Delivery time and default
- The binding nature of service and delivery dates and deadlines (hereinafter: "delivery deadline") requires the customer to provide us with documents and other required information promptly, and not to delay its cooperation or other material contractual duties, in particular, its payment obligations.
- In the case of labor disputes, and in the event of unforeseen hindrances, which are outside the supplier's sphere of influence, or if there are hindrances for which another manufacturing plant is responsible, the delivery deadline shall be extended appropriately. This shall also apply if the hindrances arise during a pre-existing delay.
- Partial deliveries and services are permissible if reasonable for the customer.
- If an ordered delivery item cannot be delivered because we have not been supplied by our own supplier, and we are not at fault for this despite their contractual obligation, we reserve the right to withdraw from the contract. In this case, we shall immediately inform the customer that the ordered goods are not available, and we shall immediately refund any payments already made.
- If we are in default and the customer suffers damages as a result, it is entitled to demand lump-sum compensation. This shall be 0.5 % for each full week of delay, but shall not total more than 5 % of the net value of the respective part of the total delivery which cannot be used on time or according to the contract because of the delay. Other claims shall be determined exclusively according to No. 9 of these Terms and Conditions.
5. Transfer of risk
- Risk shall transfer to the customer with transfer of the delivery item to the haulage contractor, carrier, or collector, or if transported by us, not later than upon departing our stores or the manufacturing plant, however. Insofar as acceptance is agreed and a fixed acceptance date has not been agreed, the customer shall accept the delivery item within eight days of notification of completion.
- If the customer has placed a call order, it must correctly call the delivery item - if ordering several delivery items, all of them - within 12 months from the date of the order, unless agreed otherwise by the contractual partners.
6. Prices and terms of payment
- The prices stated by us are ex works plus sales tax at the statutory amount applicable at the time of delivery, and without packaging. The packaging shall be charged separately.
- The purchase price is payable within 30 days of receipt of invoice.
- For works contracts for switchgears, the remuneration amounts shall be payable as follows:
1/3 14 days after date of the order confirmation,
1/3 After half of the period between the date of order confirmation and the agreed delivery date,
1/3 Within 14 days of delivery.
- We reserve the right to demand submission by a customer of an irrevocable and unlimited bank surety for the amount of the contractual price upon acceptance of the order.
- Prices apply for four months from receipt of our order confirmation. If a cost component within the total costs changes (e. g. personnel costs or hourly rates or demonstrable third-party material costs), we shall amend the price ratably, but only proportionally in respect of the corresponding costs element. The resulting new price shall apply from the first of the calendar month following receipt of the written notification.
- If payment by instalment is agreed, the respective instalment shall be paid in advance by the 3rd working day of the respective payment period, unless a specific payment date is agreed. If the customer is in default with more than one instalment, the total outstanding amount shall become due. This shall also apply if payment by instalment is agreed after the payment date. Our right to charge default interest shall remain unaffected by an agreement to pay by instament after the payment date.
- Retaining payments or offsetting against customer's claims which are disputed by us, are not recognized, are not legally upheld, or are not ready for decision in pending court proceedings, are excluded. A right of retention can only be exercised if the counter claim is based on the same delivery contract.
- In the case of non-compliance with the terms of payment, or if we become aware, after concluding the contract, that payment is at risk as a result of the customer's inability to pay, we reserve the right to carry out outstanding deliveries only for payment in advance or for provision of security deposits.
- In the case of change requests from the customer after conclusion of the contract, we reserve the right to adjust the prices correspondingly, as well as the delivery deadlines already agreed.
7. Retention of title
- We retain ownership of all delivery items until full payment of all claims to which we are entitled from the business relationship with the customer. In the case of a current account, the total goods subject to retention of title shall serve to secure the outstanding balance. If the estimated value of the goods subject to retention of title acting as security for us exceeds the outstanding claims due from the customer by more than 10 %, upon request from the customer we shall release securities of our choice.
- The customer may not pledge or otherwise transfer the delivery item as security. In the event of seizure or forfeit, or other disposal by third parties, the customer shall immediately inform us thereof.
- In the event of conduct by the customer that is in breach of the contract, in particular in the event of default, we reserve the right to recall the goods after dunning and to require the customer to return the goods.
The assertion of the retention of title, as well as the seizure of the delivery item by us, shall be deemed to be withdrawal from the contract.
- We reserve the right to insure the delivery item at the customer's cost against fire, water, and other damage, insofar as the customer has not demonstrably purchased insurance itself.
- The customer is entitled to resell the goods as part of ordinary business proceedings. It herewith assigns to us all claims up to the total of the invoice amount, which it accrues against a third party as a result of the resale. We accept the assignment. After assignment, the customer is authorized to collect the claim. We reserve the right to collect the claim ourselves as soon as the customer does not fulfil its payment obligations and is in default.
- The working and processing of the goods by the customer shall always be in our name and on our behalf. If the goods are processed, we shall acquire joint ownership of the new item in relation to the value of the goods supplied by us. This shall also apply if the goods are combined or mixed with other items which do not belong to us. If the combining or mixing takes place such that the customer's item has to be seen as the main item, it is deemed to have been agreed that the customer shall transfer rateable joint ownership to us. The customer safeguards the sole ownership or joint ownership accrued to us.
8. Customer's right of withdrawal or reduction, and other liability for the supplier
- The customer can withdraw from the contract if the full delivery conclusively becomes impossible for us. This shall also apply in the event of the supplier becoming insolvent. The customer can also withdraw from the contract if, when ordering equivalent items, performance of part of the delivery becomes impossible because of the quantity and it has a justified interest in rejecting the partial delivery. If this is not the case, the customer can reduce the remuneration correspondingly.
- If the service is late as defined in No. 4 of these Terms and Conditions, and the customer grants us an appropriate period of grace and this period is not observed, the customer reserves the right of withdrawal.
- If impossibility arises during the delayed acceptance or through the fault of the customer, the latter shall continue to be required to pay the remuneration.
- The customer also has the right of withdrawal if we allow a reasonable period of grace set for us to correct or improve a defect, for which we are responsible as defined in these Terms and Conditions, to pass without success through our own fault. The customer shall also have the right of withdrawal in other cases where we fail to correct a defect or make a replacement delivery.
- Other claims for compensation for damages of any kind, including damages not sustained by the delivery item, shall only exist in the cases of No. 9 of these Terms and Conditions. Moreover, the supplier's liability for compensation is excluded.
- Claims for compensation for damage of any kind - irrespective of the material and legal grounds - and even for damage which did not occur to the delivery item, shall only exist
- in the event of culpable breach of duty by us;
- in the event of grossly negligent breach of duty by us or in the event of culpable or grossly negligent breach of duty by our statutory representatives, or vicarious agents;
- in the event of injury to life, limb, or health, which is based on a negligent breach of duty by us, or based on a culpable or negligent breach of duty by one of our statutory representatives or vicarious agents;
- in the event of culpable breach of material contractual duties, insofar as the attainment of the contractual purpose is at risk; with regard to the typical contractual, foreseeable damage;
- in cases, where defects to the delivery item are liable; for personal injury or material damage; to privately used objects,
- in the event of defects, which were maliciously concealed, or whose omission we have guaranteed.
Moreover, other claims for compensation are excluded.
10. Liability for defects
- All these deliveries/services shall be corrected or replaced free of charge at our discretion. Discovery of such defects must be reported to us immediately in writing.
- No liability is assumed for damages resulting from natural wear.
- No guarantee is assumed for damages caused by the following reasons:
- inappropriate or incorrect use
- defective assembly or commissioning by the customer or by third parties
- defective or negligent treatment of the delivery item, in particular in respect of the existing operating instructions
- in the event of excessive loads
- if inappropriate equipment and replacement materials are used
- In order to carry out all improvements and replacements, which at our discretion appear necessary, the customer shall give us the time and opportunity required, otherwise we are released from liability for defects. The customer is only entitled to correct the defect itself or through third parties, and to demand reasonable compensation from us for its costs in urgent cases of danger to working safety, of which we must be informed immediately, or if we are in default with the correction of the defect.
- We shall bear the costs to the statutory extent required of the direct costs incurred as a result of the correction or replacement, provided that the complaint is considered to be justified.
- We are not liable for consequences resulting from incorrect changes or maintenance work by the customer or third parties undertaken without our prior consent.
- Unless agreed otherwise, we shall make our deliveries in Germany free from property rights and third-party copyright. If there is a corresponding breach of property rights, we shall either procure a corresponding right of use from the third party or modify the delivery item such that it no longer breaches property rights. Insofar as this is not possible for us at appropriate and reasonable conditions, both the customer and we reserve the right to withdraw from the contract.
- Moreover, if there are legal defects, the conditions of No. 10 and No. 9 of these Terms and Conditions shall apply correspondingly, with the customer only having claims if it has informed us immediately in writing of any claims asserted by third parties, does not acknowledge a claimed infringement either directly or indirectly, all possibilities for defense are reserved for us, the infringement is not based on the fact that the customer has changed the delivery item or otherwise used it non-contractually, or if the legal defect is due to instructions from the customer.
- Other claims for compensation for damages of any kind, also damages not suffered to the delivery item, shall only exist in the cases under No. 9 of these Terms and Conditions.
- Claims due to defects - for whatever legal reason - shall expire in 12 months. This shall not apply if the defect is in a building or in items for a building, and these caused the defect, as well as in the case of entrepreneurial recourse according to Sections 478, 479 BGB. Sentence 1 notwithstanding, the statutory periods shall also apply in the event of claims under No. 9 of these Terms and Conditions.
- Used delivery items are sold to the exclusion of any liability for material defects. This exclusion shall not apply in cases under No. 9 of these Terms and Conditions.
12. Installation and services
- Unless agreed otherwise in writing, assembly work and services (repairs and maintenance) shall be remunerated. The remuneration shall include, in particular, travel costs, daily allowances, and the usual rates for working hours, and surcharges for overtime, night work, Sunday work, and work on public holidays, for work under difficult circumstances, and for planning, and monitoring.
- We shall charge the costs for preparatory work, travel, waiting time, and travel time separately. If the assembly or commissioning is delayed for reasons for which we are not responsible, the customer shall bear all costs for the waiting time, and for other necessary travel.
- At its own cost, the customer shall provide the necessary support staff with the tools they require in the necessary number. Furthermore, the customer shall provide sufficiently large, suitable, dry, and lockable rooms for storing the machine parts, equipment, materials, tools, etc. In order to protect our property, as well as the assembly and service staff, it shall take the measures which it would take in order to protect its own property. If the nature of the customer's business requires particular protective clothing and protective equipment for the assembly and service staff, it shall also provide this.
- Our assembly staff and their vicarious agents are not authorized to carry out work, which is not performed in order to fulfil our obligation to deliver and erect or assemble the delivery item, or which is arranged by the customer or a third party without consulting us.
- If assembly is performed by the customer or by a third party engaged by it, our respective operating and assembly instructions must be observed.
- When carrying out service work (repair and maintenance work), we can decide at our discretion, on the basis of our experience and technical assessment, whether we carry out the service work at the customer's premises or in our own premises. If the service work is to be carried out in our premises, the customer shall send us the item. After completing the service, we shall return the item to the customer. The customer shall bear the risk of loss or damage, along with the transport costs.
- Insofar as the customer does not report the fact that it has made changes, the devices shall be reset to the standard configuration after the service. If the customer has informed us of altered settings and programs, we shall configure and program the item correspondingly after completing the service. However, the customer is required to check these settings. We do not assume any guarantee for this. Furthermore, we do not assume responsibility for the function after incorporation of our product in the plant.
- Our service engineer is only authorized to carry out service work to parts other than those supplied by us if a quick and easy solution is expected, and the customer expressly places a corresponding supplemental order.
- Our engineer can cancel the service if it is found that he is unable to provide a remedy in the expected short time. In this case, the customer shall also pay the time-based remuneration and for the material used in carrying out the supplemental order. If, based on a technical judgment, the engineer could have completed the service work in the expected short time and did not realize this due to gross negligence or acted with wilful misconduct, the customer shall not have to pay for the canceled service.
- It is incumbent upon the customer to check whether claims from delivery and maintenance agreements with third parties will be affected or lost as a result of the issue and execution of a supplemental order. We do not assume any liability for this.
- If devices to be serviced are delivered, and in the event of returns, the customer shall always strictly comply with the respective applicable version of the Ordinance on Hazardous Substances.
- In particular, the customer shall also package and label devices which are filled with hazardous substances, or which otherwise come into contact with same, taking into account the statutory conditions correspondingly.
In addition, the customer must expressly refer in the service order to the devices' connection with hazardous materials as defined in the Ordinance on Hazardous Substances and, if necessary, enclose a safety data sheet in accordance with EU Directive 91/155/EC.
- If this does not involve such devices which are manufactured by us, for which we continue to be liable for defects, we can refuse to accept a service order for devices according to paragraph b) above at any time, which refer to the connection to hazardous substances.
- If the Ordinance on Hazardous Substances is not observed, we reserve the right to assert possible claims for compensation; this shall not apply if the customer is not responsible for the breach of duty.
13. Export control regulations
- The deliveries and services (contractual performance) are provided subject to the condition that performance is not prevented by national or international provisions, in particular export control conditions and embargos, or other restrictions. The customer shall provide all information and documents, which are required for the export or import. Delays due to export audits or approval procedures shall suspend deadlines and delivery times. If required approvals are not issued or if the delivery and service cannot be approved, the contract with regard to the affected parts shall be deemed not to have been concluded.
- We reserve the right to terminate the contract without notice if termination is required for us in order to comply with national or international legal provisions. In the case of such termination, the assertion of damages or other rights by the customer because of termination is excluded.
14. Place of performance, place of jurisdiction, and concluding provisions
- For traders, legal entities under public law or special-funds under public law, the place of performance and jurisdiction is our head office or - at our discretion - the location of the branch office which concluded the contract.
- The law of the Federal Republic of Germany shall apply to these Terms and Conditions and to the entire legal relationship between us and the customer to the exclusion of the UN Convention on the International Sale of Goods (CISG).
Supplemental Clauses to Number 1.4 General Terms of Business
Supplemental Clauses to Number 1.4 General Terms of Business Version 08/2010
Ergänzungsklauseln zu Ziffer 1.4 AGB Ausgabe 08/2010
1. Subject of the Supplemental Clauses
- These supplemental clauses serve to supplement and amend the "General Terms of Business" of JUMO GmbH & Co. KG - hereinafter known as the "AGB" - as defined in the following provisions.
- The subject of these supplemental clauses is software which is regularly co-leased as part of a product.
- The provider does not undertake any obligations to perform software services on the basis of these supplemental clauses. A separate agreement will be concluded to cover said services.
2. Transfer of Risk
Supplemental to No. 5.3 AGB:
In the event of software being transferred by electronic communications media (e.g., the Internet), the risk shall be transferred when the software has left the provider's sphere of influence (e.g., his server during downloads).
3. Liability for Loss of Data
Supplemental to No. 9 AGB:
If a defect in the software which has been transferred causes loss of, or damage to, data and programs at the customer's business, the provider shall be liable only within the scope designated in Nos. 9.1 to 9.7 AGB.
The customer acquires any documentation belonging to the software separately from the software, unless the order confirmation indicates that the documentation will be delivered together with the software.
5. Single License
- The utilization rights to the software specified in the order confirmation or software product certificate are granted to the customer.
- The provider grants to the customer the temporally unlimited and nonexclusive right to utilize the software in conjunction with the equipment designated in the order confirmation or in the software product certificate, whereby any and every software program transferred to the customer may be used on only one device at a time (single license). If a device comprises a number of workplaces at which the software can be used independently, the single license covers only one workplace.
- The customer may make copies of the software which may be used solely for backup purposes (backup copies). The user may copy the software for any other purposes solely within the scope of a multiple license.
- The customer is not entitled to modify, reverse engineer, translate or isolate parts of the software. The customer may not remove alphanumeric and other markings from the data carriers and shall transfer them without change to the backup copies.
- The provider grants to the customer the revocable right to transfer the utilization rights granted to the customer to third parties. If the customer has acquired the software in combination with a device, he may transfer the software for utilization to third parties only in combination with said device. The customer shall conclude a written agreement with the third party, requiring the third party to assume the obligations from this contract If the customer transfers the software to a third party, the customer is responsible for satisfying any export requirements and shall to this extent indemnify and hold harmless the provider from any obligations.
6. Multiple License
- A customer wishing to use the software concurrently on a number of devices or at a number of workplaces requires a multiple license. The prerequisite for a multiple license is the granting of a single license, plus a written confirmation by the provider regarding the number of permissible copies which the customer may make of the software transferred on the basis of the single license. The multiple license grants the customer the temporally unlimited, non-exclusive and nontransferable right to create the number of copies designated in the written confirmation and to use the created copies in accordance with the regulations for single licenses and to transfer them to third parties for utilization.
- The use of the software at a number of workplaces in networks is the equivalent of the use of the software on a number of devices concurrently, although in this case there is no copying of the software (network license). The regulations for multiple licenses apply to network licenses analogously. The number of permissible workplaces corresponds to the number of permissible copies.
- The customer shall observe the instructions for making copies supplied by the provider together with the multiple license. The customer shall keep records regarding the location of any and all copies and, at the provider's request, submit said records to the provider. The customer shall transfer without modification any and all alphanumeric and other markings on the data carriers to any and all copies.
Supplemental to No. 10 AGB:
- Provider and customer are in agreement that it is not possible to develop software which is defect-free under all application conditions. Any deviations of more than insignificant nature - provided that the defect is not the lack of a guaranteed characteristic - from the pertinent documentation occurring in the most recent release transferred to the customer which are proven by the customer and reproducible shall be deemed defects in the software. The customer is obligated to provide to the provider verifiable documents regarding the type and occurrence of deviations from the documentation and to cooperate in the localization of errors. The guaranty does not cover defects which are caused by deviations from the conditions of use foreseen for the program and described in the documentation.
- If the defective data carriers are defective, the customer may require only that the provider substitute defect-free copies for the defective carriers.
- In other cases, the provider shall, at his discretion, eliminate the defect by transferring a new build (update) or by providing a new release (upgrade) as a substitute. The provider shall make available to the customer an interim solution for the evasion of the defect until an update or upgrade can be made available, provided that this is possible without excessive expenditures and that the customer cannot process urgent tasks as a consequence of the defect. If the elimination of the defect fails, the customer has the right to reduce the purchase price or to cancel the contract. If the provider has granted the customer a multiple license, the customer may create copies of the upgrade provided as a substitute in a number corresponding to the multiple license.
- The determination and elimination of the defect may be undertaken, at the provider's discretion, at the customer's or provider's place of business. If the provider chooses to eliminate a defect at the customer's place of business, the customer shall make available hardware and software as well as other operating conditions with the appropriate operating personnel at no charge to the extent that this is required in order to perform the elimination of the defect within a reasonable period. The customer shall make available to the provider the documents and information for elimination of the defect which he has in his possession. The provider may request from the customer reimbursement for transport, travel and room and board expenses incurred in the course of the elimination of defects carried out at the customer's place of business.
- If a defect claimed by the customer cannot be reproduced, can be traced back to incorrect operation on the part of the customer or is excluded from the guaranty for any other reason, the provider may request from the customer reasonable compensation for the test as well as reimbursement of the transport, travel and room and board expenses which have been incurred.
- The provider guarantees software which the customer or a third party has expanded via an interface planned by the provider for this purpose only to the point of the interface.
- The provider does not guarantee that the transferred software is compatible with the data processing environment used by the customer, especially with the software and hardware products used by the customer.
- The customer shall undertake any and all required and reasonable measures to prevent or limit the consequences of damage from defects in the software, in particular to notify the provider without delay of any defects and to provide for the backup of programs and data.