Terms and Conditions

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Terms and Conditions of Sale and Delivery of Gebr. Jancke GmbH
I. General
These General Terms and Conditions of Sale and Delivery shall apply to all our offers and all
contracts of sale and contracts for work and materials with us, including any consulting
services. We shall not be bound by the buyer's general terms and conditions of purchase, even
if we do not explicitly object to them. Our offers shall always be subject to change without
notice unless we have explicitly designated them as binding.
Verbal agreements and promises shall require our written confirmation in order to be effective.
II. Delivery, delivery periods
1. We shall be entitled to deliver 3% more or less than the volumes agreed in the contract. When
the goods are shipped only the weight determined at our factory/warehouse shall be
authoritative. This shall also apply in relation to any natural weight loss.
2. If the goods are not accepted within the envisaged period, we shall have the right to charge for
the goods and to demand payment after setting a deadline of 3 working days. Before this time
the goods shall be stored on the buyer's account and at the buyer's risk.
3. The delivery period shall commence when the acknowledgement of the order is sent out, but
not before all questions concerning the order have been clarified. Any changes in the order
will alter the delivery date, which will then have to be recalculated. Timely part-shipments in
suitable volumes shall be permitted and can be settled separately.
4. If we are unable to comply with our delivery obligations due to force majeure, strikes or lockouts,
the effects of industrial disputes or because of other events beyond our control –
regardless of whether these take place at our sites or at the sites of our supplier – we shall have
the right to postpone the delivery date for the duration of the impediment and a suitable
rundown time. If delivery subsequently becomes impossible or unreasonable for either of the
Parties due to such events, both Parties shall have the right to rescind the contract.
5. Deliveries are subject to correct and punctual delivery by our own suppliers.
6. In the case of delivery delays or impossible delivery due to a fault on our part, the buyer may
withdraw from the contract according to the statutory preconditions. If we are late in effecting
delivery and this causes the buyer to suffer a damage of any kind, the buyer shall have the
right to claim damages up to the sum of the liquidated damages for default set out below.
These shall amount to 0.5% for each full week of the delay, but no more than 5% of the value
of the part of the total consignment which cannot be used on time or as agreed in the contract
as a result of the delay. Any claims arising from late delivery due to wilful intent, gross
negligence or the breach of fundamental contractual obligations shall be governed by clause
IV of these Terms and Conditions.
III. Liability for defects
1. Complaints due to obvious defects can only be considered if they are made immediately and
no later than 7 days following the receipt of the goods. In this case notice of the defects must
be given in writing, by fax, telex or telegraph. Hidden defects must also be notified without
delay and no later than 5 days after they have been discovered. No complaints will be accepted
if the buyer has processed the goods or transported them away from an agreed place of
destination, unless the buyer proves that it did not notice the defect at the agreed place of
destination or before processing and no negligence was involved. In the case of a punctual and
justified complaint we may either choose to accept the return of the defective part and refund
the purchase price or deliver a product that is free of defects. If we choose to make a substitute
delivery and this finally proves to be unsatisfactory or if we are set a reasonable deadline for
such a delivery which we allow to lapse to no avail or if we refuse to make a substitute
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delivery or if this should prove to be impossible for ourselves or unreasonable for the buyer,
the buyer may rescind the contract or demand a reduction in price. Liability for damages shall
be governed by clause 7 of these Terms and Conditions.
2. Details concerning the composition of the purchased goods merely have a descriptive purpose.
All recommendations made for the use of our products in processing are given to the best of
our knowledge. However, due to the different requirements and individual conditions in use,
we can give no guarantee that our goods will be suitable for a certain purpose if we have not
explicitly confirmed that this is the case. At all events the buyer must first check that the goods
are suitable for the buyer's intended purpose.
3. The time limit for claims due to defects under section 437 no 1 and section 438 I, no 3 of the
German Civil Code (Bürgerliches Gesetzbuch, BGB) is 12 months from the date of delivery.
This does not apply to claims under s. 437 no 3 BGB. Our liability in this case shall be
governed by clause IV of these Terms and Conditions.
IV. General liability
1. Without prejudice to the provision in clause II.6 of these Terms and Conditions, all claims for
damages of any kind are excluded, whether due to defects or on other grounds as a result of
delay or impossibility of performance, incorrect advice, culpa in contrahendo, the breach of
other contractual obligations, on grounds of tort or on other legal grounds, particularly damage
that is not damage to the delivery item. We shall only be liable in cases of wilful intent, gross
negligence, culpable damage to life, limb or health, defects that we have fraudulently
concealed or defects to the delivery item in as far as we are liable under the Product Liability
Act for damage to private property and for personal injury, even where we are not at fault, or
on giving a guarantee for certain characteristics.
2. In the case of a culpable breach of fundamental contractual obligations we shall also be liable
in the case of ordinary negligence on the part of the owner, officers and directors or
executives; in this case, however, liability shall be limited to the typical reasonably foreseeable
damage. Fundamental contractual obligations are obligations that are essential to the
performance of the contract and on whose fulfilment the buyer can regularly rely.
V. Reservation of title
1. The delivered goods shall remain our property until all outstanding claims under the business
relationship have been paid, including incidental expenses and interest. This also applies until
the encashment of cheques and bills of exchange in relation to such claims. In the case of
current accounts the reservation of title shall also serve to secure our claim to the balance
outstanding.
2. The processing and working of the goods under reservation of title shall be carried out on our
behalf, without this giving rise to any obligations on our part. In the case of the processing,
combination or mixing of our goods with other goods that do not belong to us, we shall be
entitled to co-ownership of the new item in the same ratio as that between the invoice value of
the goods under reservation of title and the value at the time of processing, combination or
mixing of the other goods that have been processed, combined or mixed. If the buyer acquires
sole ownership of the new item, the buyer hereby transfers co-ownership of this item to us in
the same ratio as that between the invoice value of the goods under reservation of title and the
value at the time of processing, combination or mixing of the other goods that have been
processed, combined or mixed and shall store such goods on our behalf with professional care
and diligence.
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3. The resale of the delivered goods, regardless of whether they have been processed, combined
or mixed, is only permitted for resellers in the normal course of business and under reservation
of title and only if the claim from the resale is assigned to ourselves. The buyer may not
pledge the goods or transfer title to the goods by way of security nor agree on a prohibition of
assignment. The buyer must first obtain our approval before assigning a claim under a
factoring agreement. The buyer must notify us immediately of any seizure of the goods or any
other interference with our rights by third parties.
4. The buyer hereby assigns its claims from the resale of our goods, regardless of whether they
are sold without or after any processing, combination or mixing with other goods. We accept
this assignment. The value of the goods under reservation of title shall be the amount shown in
our invoice plus an additional covering charge of 10%, which shall not be applicable if it
comes into conflict with the rights of third parties. In the event of the resale of our goods after
processing, combination or mixing or the resale of the new item after processing, combination
or mixing or the mixed or combined part, the buyer shall assign its claim against its own
customer to the sum of the invoice value of our processed, combined or mixed goods or only
the amount equivalent to our share of the jointly owned item, if this amount should be lower.
This shall also apply in the case of a sale after our goods have become an important part of
another item through combination, mixing or processing with other goods that do not belong
to us.
5. On request the buyer must provide all requested information concerning the assigned claims,
particularly the name and address of its own customers. We shall have the right to give the
buyer's customers notice of the assignment in the event of late payment.
6. The buyer shall be entitled to collect the assigned claims as long as it properly complies with
its obligations towards ourselves. The buyer shall insure the goods under reservation of title at
its own expense. The buyer hereby assigns any claims against the insurance in the case of the
loss of or damage to the goods under reservation of title.
7. If the value of the collateral provided for our claims exceeds the value of these claims by more
than 10%, we undertake to release the corresponding collateral on the buyer's request and may
choose which items of collateral to release. Ownership of the goods under reservation of title
and the assigned claims shall pass to the buyer on the settlement of all our claims arising from
the business relationship.
8. If the goods are exported and the law in the buyer's country does not permit reservation of
title, we may exercise all rights that the foreign law grants us in respect of the delivery item.
The buyer must take all measures and make all statements that are necessary in order to
effectively agree a reservation of title or a comparable security right to the delivery item under
the law in the buyer's country.
VI. Terms of payment
1. Statutory interest shall be charged in the case of late payment. If it becomes apparent after the
contract has been formed that our claim to payment is at risk because the buyer is unable to
make payment, we shall have the right to demand the immediate payment of all claims still
outstanding and to perform all existing supply agreements only on the provision of firstranking
collateral or prepayments. This shall not affect any other statutory claims that we may
have. In such cases we may demand the return of our goods without automatically exercising
our right to rescind the contract.
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2. In the event of any changes in factors that influence how the product's price is calculated, such
as a change in production costs, wage costs, the cost of raw materials or the prices of
suppliers, the rate of exchange, the interest rate or other factors beyond our control, we reserve
the right to adjust the price of the product to the same extent as the change in the factor affects
the price.
3. The buyer may only set off counterclaims that are undisputed or which have been determined
as legally binding. The same applies to the exercise of a right of retention or a right to refuse
performance.
VII. Export control
1. The formation of the contract and its performance shall be subject to all applicable export control
regulations, national, European and US, including all European or US sanction lists and other
personal embargos (collectively referred to as "export control regulations").
2. The observance of and compliance with the relevant export control regulations and other laws in
the buyer's country and in the country to which deliveries are made shall be the responsibility of
the buyer. On the formation of the contract the buyer must notify us in writing of all particularities
resulting from these provisions.
3. The buyer hereby undertakes not to use the goods for military or nuclear purposes of any kind nor
to sell the goods to third parties who would use the goods for such purposes nor to provide such
parties with the goods in any other way, be it directly or indirectly. On the seller's request, the
buyer shall provide the seller with the original copy of the corresponding documents regarding the
final destination of the goods in the format prescribed by the German Federal Office of Economics
and Export Control (Bundesamt für Wirtschaft und Ausfuhrkontrolle) and shall do so without
delay, after no longer than 10 working days.
4. If after the formation of the contract we become aware of any circumstances that would justify the
assumption of a possible or actual infringement of the export control regulations or the buyer's
obligations under this clause and its sub-clauses we will notify the buyer in writing.
5. In all cases in which circumstances become known that justify the assumption of a possible or
actual infringement of the export control regulations or of the buyer's obligations under this clause
and its sub-clauses we shall be given a reasonable amount of time before we are considered to be
in default so that we have the opportunity to examine the matter.
6. If actual infringements of the export control regulations or breaches of the buyer's obligations
under this clause and its sub-clauses should be ascertained which cannot be rectified or excluded,
we shall have the right to rescind the contract.
7. The buyer undertakes to indemnify us against all claims due to the buyer's poor performance of or
failure to perform its obligations under this clause or its sub-clauses. The damages shall also
include compensation for all necessary and reasonable expenses that we incur or have incurred
particularly the costs and disbursements for any legal defence and any official penalties or fines.
VIII. Miscellaneous
1. The place of performance is Hamburg. The sole place of jurisdiction for all disputes with
business people (merchants) or persons who have no general place of jurisdiction in Germany
shall be the place where we have our principal place of business, also for disputes involving
cheques and bills of exchange. We may also choose to bring an action against the buyer before
the competent court in the place where the buyer has its principal place of business. As an
alternative, the plaintiff shall have the right to bring its case before the arbitral court of
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Deutsche Institution der Schiedsgerichtsbarkeit e.V. (DIS) (German Institution of Arbitration).
In this case the arbitral court shall have sole jurisdiction. The place of arbitration shall be
Hamburg. The language of the case shall be German.
2. German law shall apply. The UN Convention on Contracts for the International Sale of Goods
(CISG) shall not apply. The latest version of Incoterms 2000 shall apply.
3. If one or several provisions of this contract should be invalid, this shall have no bearing on the
validity of the remaining provisions or the contract as a whole.