General Terms and Conditions of JUMAG Dampferzeuger GmbH
- All deliveries and services are based on these terms and conditions as well as any separate contractual agreements. Deviating
purchasing terms and conditions from the customer do not become part of the contract even if the order is accepted. An offer made by JUMAG is non-binding. In the absence of a special agreement, the contract shall be concluded upon written confirmation of the order by JUMAG.
- JUMAG reserves the right to samples, cost estimates, drawings and similar information of a tangible and intangible nature – also in
electronic form – they must not be made accessible to third parties. JUMAG undertakes to
only make information and documents marked by the customer accessible to third parties with the customer's consent.
II. OFFER, PRICE AND PAYMENT
- In the absence of a special agreement, the prices shall apply ex works including loading at the factory. Value added tax at the respective statutory rate
is added to the prices.
- Unless otherwise stipulated in the order confirmation, invoices shall be paid within 14 days without deductions.
Timely payment shall only be deemed to have been made if JUMAG possesses the money on the due date.
- The customer shall only have the right to withhold payments or to offset them against counterclaims to the extent that its counterclaims
are undisputed or have been legally established.
III. PERFORMANCE TIME, PERFORMANCE DELAY
- The performance time results from the agreements of the contracting parties. JUMAG's compliance therewith presupposes that all
commercial and technical questions between the contracting parties have been clarified and that the Client has fulfilled all obligations incumbent upon it, such as
providing the necessary official certificates or permits or making a deposit. If this
is not the case, the performance time shall be extended accordingly. This shall not apply if JUMAG is responsible for the delay.
- Compliance with the performance deadline is subject to correct and timely delivery by our suppliers. JUMAG will communicate
any emerging delays as soon as possible.
- The time for performance shall be deemed to have been observed if the goods have left JUMAG's factory by the end of this period or if JUMAG has reported that the goods are ready for dispatch
. Insofar as acceptance is to take place at JUMAG, the acceptance date shall be decisive – except in the case of justified refusal of acceptance
– alternatively the notification of readiness for acceptance.
- If shipment or acceptance of the goods is delayed for reasons for which the customer is responsible, the customer shall be charged for the costs incurred as a result of the delay, starting one month
after notification of readiness for shipment or acceptance.
- If non-compliance with the time of performance is due to force majeure, industrial disputes or other events beyond JUMAG's control,
the time of performance shall be extended accordingly. JUMAG shall notify the customer of the beginning and end
of such circumstances as soon as possible.
- The customer may withdraw from the contract without notice if JUMAG is ultimately unable to provide the entire service prior to the transfer of risk
. In addition, the customer may withdraw from the contract if, in the case of an order, the performance of part of
the service becomes impossible and the customer has a justified interest in refusing partial performance. If this is not the case, the customer shall
pay the contract price attributable to the partial performance. The same shall apply in the event of JUMAG's inability to perform. Section VII.2 shall apply in all other respects.
If the impossibility or inability occurs during the delay in acceptance or if the customer is solely or predominantly
responsible for these circumstances, the customer shall remain obligated to counter-performance.
- If the customer sets JUMAG – taking into account the statutory exceptions – a reasonable deadline for performance after the due date and
if the deadline is not met, the customer shall be entitled to rescind the contract within the scope of the statutory provisions.
Further claims arising from delay in performance shall be determined exclusively in accordance with Section VII.2 of these Terms and Conditions.
IV. TRANSFER OF RISK, ACCEPTANCE
- Unless otherwise agreed, the place of performance for JUMAG's services shall be JUMAG's registered office. If the customer wishes
to have the goods sent to another location, this shall be subject to a separate agreement at the customer's expense. The risk shall pass to the customer
when the goods have left the factory, even if partial deliveries are made or JUMAG has assumed other services, e.g.
shipping costs or delivery and installation.
- If shipment or acceptance is delayed or does not take place due to circumstances beyond JUMAG's control, the risk
shall pass to the customer from the date of notification of readiness for shipment or acceptance. JUMAG undertakes to take out, at the customer's expense,
such insurance as the customer may require.
- Partial performance is permissible insofar as it is reasonable for the customer.
- Insofar as acceptance at JUMAG has been agreed, such acceptance shall be carried out without undue delay on the acceptance date, alternatively after JUMAG's report of
readiness for acceptance. The customer may not refuse acceptance in the event of an insignificant defect.
V. RETENTION OF TITLE
- JUMAG shall retain title to the goods until all claims arising from the contract have been paid in full. JUMAG shall be entitled
to take back the goods if the customer acts in breach of contract.
- The customer is obliged to treat the goods with care as long as ownership has not yet passed to him. In particular, he is
obliged to insure them adequately at his own expense against theft, fire and water damage at replacement value. As long as
title has not passed to JUMAG, the customer shall notify JUMAG in writing without undue delay if the goods are seized
or subject to other interventions by third parties. To the extent that the third party is not in a position to reimburse JUMAG for the judicial and extrajudicial costs of an
action pursuant to § 771 ZPO, the customer shall be liable for the loss incurred by JUMAG.
- The customer is entitled to resell the reserved goods in the normal course of business. The customer hereby assigns to JUMAG the claims of the
purchaser arising from the resale of the retained goods in the amount of the final invoice amount agreed with JUMAG
(including value added tax). This assignment shall apply regardless of whether the goods have been resold without or after processing
. The customer remains authorised to collect the claim even after the assignment. The authority of JUMAG to make the claim
shall remain unaffected. However, JUMAG shall not collect the claim as long as the customer meets it payment obligations from
the proceeds collected, is not in default of payment and, in particular, no application for the opening of insolvency proceedings
has been filed or payments have been suspended.
- The processing or transformation of the goods by the customer shall always be carried out in the name of and on behalf of JUMAG. In this case,
the customer's expectant right to the goods shall continue with the transformed item. If the goods are processed together with other items not belonging to JUMAG, JUMAG shall acquire co-ownership in the new item in proportion of the objective value of goods to the other processed items at the time of processing.
The same applies in the event 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 to be agreed that the customer transfers proportionate co-ownership to JUMAG and keeps the resulting sole ownership or co-ownership for JUMAG.
In order to secure JUMAG's claims against the customer, the customer shall also assign to JUMAG such claims against a third party as may accrue to the customer through the customer through the combination of the retained goods with real property; JUMAG hereby accepts such assignment.
- JUMAG undertakes to release the securities to which it is entitled at the customer's request insofar as their value
exceeds the claims to be secured by more than 20%."
VI. CLAIMS FOR DEFECTS
Subject to section VII, JUMAG provides the following warranty for material and legal defects in the services to the exclusion of further claims:
- All those parts that turn out to be defective as a result of circumstances occurring before the transfer of risk are to be repaired or replaced free of charge at JUMAG's discretion
. JUMAG shall be notified immediately in writing if such defects are found
. Replaced parts become the property of JUMAG.
- The customer shall, after consultation with JUMAG, grant JUMAG the necessary time and opportunity to carry out all repairs and replacements deemed necessary by JUMAG;
otherwise JUMAG shall be released from liability for the resulting consequences.
Only in urgent cases of danger to operational safety or to prevent disproportionate damage, in which case JUMAG shall be notified immediately, shall the customer have the right to remedy the defect itself or have it remedied by third parties and to claim reimbursement of the necessary expenses from JUMAG.
- From the costs incurred by rectification or replacement, JUMAG shall bear the costs of the replacement part including shipping, insofar as the complaint proves to be justified
JUMAG shall also bear the costs of dismantling and installation as well as the costs of providing the necessary fitters and assistants, if any, including travel expenses, provided this does not result in a disproportionate burden for JUMAG.
A disproportionate burden is to be assumed in particular if the goods are located in a place which is difficult to access or outside the territory of the Federal Republic of Germany.
In this case,
the customer's claim is limited to the delivery of spare parts.
- Within the scope of the statutory provisions, the customer shall be entitled to rescind the contract if JUMAG – taking into account the
the statutory exceptions – has let a reasonable deadline for rectification or replacement due to a material defect
elapse without result. If there is only an insignificant defect, the customer shall only be entitled to a reduction of the contract price.
The right to reduce the contract price shall otherwise remain excluded.
Further claims shall be determined in accordance with section VII.2 of these Terms and Conditions.
- No warranty is assumed in particular in the following cases:
Unsuitable or improper use, faulty assembly or commissioning by the customer or by third parties, natural wear and tear, faulty or negligent handling, improper maintenance, unsuitable operating materials, defective construction work, unsuitable foundation, chemical, electrochemical or electrical influences – insofar as they are not the responsibility of JUMAG.
- All readily procured installed parts shall be warranted in the same manner as the sub-supplier warrants to JUMAG.
The corresponding warranty is passed on. In addition, further claims for damages, consequential damages, transport costs, cancellation or reduction are excluded.
- If the customer or a third party carries out improper repairs, JUMAG shall not be liable for the resulting consequences.
The same shall apply to any changes made to goods without JUMAG's prior consent.
Defects in title:
- If the use of goods leads to an infringement of industrial property rights or copyrights in Germany, JUMAG shall, at its own expense,
generally procure for the customer the right to continue using the goods or modify the goods in a manner reasonable for the customer in such a way
that the infringement of industrial property rights no longer exists.
If this is not possible under economically reasonable conditions or within a reasonable period of time, the customer shall be entitled to withdraw from the contract.
Under the aforementioned conditions JUMAG shall also be entitled to withdraw from the contract.
In addition, JUMAG shall indemnify the customer against undisputed or legally established claims of the relevant property right holder.
- Subject to section VII.2, the obligations of JUMAG specified in section VI.7 shall be conclusive in the event of infringement of industrial property rights or copyrights
They shall only exist if
- the customer informs JUMAG immediately of asserted property rights or copyright infringements,
- the customer supports JUMAG to a reasonable extent in defending the asserted claims or enables JUMAG to carry out the modification measures pursuant to section VI. 7 allows JUMAG the right to take all defensive measures including out-of-court settlements, the defect of title is not based on instruction of the customer and the infringement of rights was not caused by the fact that the customer modified the goods without authorisation or used them in a way not conforming with the contract.
- If the goods cannot be used by the customer in accordance with the contract as a result of JUMAG's failure to carry out or incorrectly carrying out suggestions and advice given before and after the conclusion of the contract
or as a result of a breach of other ancillary contractual obligations – in particular instructions for the operation and maintenance of the goods – the provisions of sections VI and VII.2 shall apply mutatis mutandis to the exclusion of any further claims of the customer.
- JUMAG shall only be liable for damage not caused to the good themselves – for whatever legal reasons – as follows
in case of intent,
in the case of gross negligence on part of the owner/executive bodies or senior employees,
in the case of culpable injury to life, body, health,
in the case of defects which he has fraudulently concealed or the absence of which he has guaranteed,
for claims under the Product Liability Act
In the event of a culpable breach of essential contractual obligations, JUMAG is also liable for gross negligence on the part of non-managerial employees and in the event of
slight negligence, in the latter case limited to the foreseeable damage typical for the contract.
Further claims are excluded.
VIII. STATUTE OF LIMITATIONS
All claims of the customer – for whatever legal reasons – are subject to a limitation period of 12 months. All claims for damages according to section
VII. 2 a – e, the statutory time limits shall apply. They shall also apply to defects of a building or to delivery items which have been used for a building in accordance with their customary use and have caused its defectiveness.
IX. SOFTWARE USAGE
Insofar as software is included in the scope of services, the customer shall be granted a non-exclusive right to use the delivered software,
including its documentation. It is provided for use on the goods intended for that purpose.
Use of the software on more than one system is prohibited.
The customer may only copy, revise, translate or convert the software from the object code to the source code to the extent permitted by law (§§ 69 a ff. UrhG)
. The customer undertakes not to remove manufacturer's information – in particular copyright notices – or to modify it without the prior express consent of JUMAG.
All other rights to the software and the documentation, including the copies, shall remain with JUMAG or the software supplier. Sub-licencing
is not permitted.
X. APPLICABLE LAW, JURISDICTION
- This agreement shall be governed by the laws of the Federal Republic of Germany to the exclusion of the provisions of the international
private law and the UN Convention on Contracts for the International Sale of Goods.
- The place of jurisdiction is the court responsible for the registered office of JUMAG, provided that the parties are fully qualified merchants. JUMAG is, however,
entitled to bring an action at the customer's principal place of business.
Subject to change without notice / as of: July 2021