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John GmbH

Terms & Conditions

I.       Scope

1. The following sales conditions are applicable to all contracts regarding the supply of goods between the buyer and us. They are also valid for all future business relations, even if the conditions are not explicitly agreed upon once again. Deviating conditions of the buyer which we do not explicitly accept are without obligation for us, even if we do not explicitly contradict them. The following terms and conditions are valid, too, if we without reservations proceed with the buyer's order even though we know of opposing or deviating or contradicting terms of the buyer.

2. In contracts, all agreements between us and the customer regarding the completion of this contract are settled in a written form.

 

II.       Quotation and Sales Contract

1. An order of a buyer that has to qualify as an offer to conclude a contract of sale can be accepted by us within two weeks by sending an order confirmation or by sending the products ordered within the same period of time.

2. All our offers are subject to change without notice and not binding, unless we have explicitly marked them as binding.

3. We reserve all rights of ownership, copyrights or other trademark rights on all illustrations, calculations, drawings, and further documents. The buyer is only permitted to give them to third parties upon receipt of a written permission, whether we have marked them as confidential or not.

 

III.       Conditions of Payment

1. Unless it arises differently from the order confirmation, our prices are quoted ex works, excluding packaging. The value added tax is not included in our prices. Its statutory amount is separately shown on the invoice on its issue date.

2. A deduction requires a special written agreement between us and the buyer. Unless it arises differently from the order confirmation, the net purchase price (without deductions) falls due on the day of receipt of the invoice. A payment only counts as completed when it is at our disposal. In case of cheque payments, a payment counts as completed when the cheque is cashed in.

3. Should the buyer fall behind, the statutory rules regarding the default of payment apply.

4. Set-off rights shall only be owned by the buyer, if notice of defects or counterclaims is put forward, the claim was recognized by declaratory judgment and is undisputed and acknowledged by us. Furthermore, he is only insofar entitled to his right of retention, as his counterclaim is based on the same contractual relationship.

5. For special orders, the stated prices are based on general estimation. A detailed offer will be sent in writing or via E-mail after checking the individual parameters.

IV.       Delivery & Performance Time

1. Delivery dates or time which are not explicitly agreed upon are solely non-committal. The delivery time given by us starts after resolving all technical questions. The buyer has to fulfil all obligations properly and in a timely manner.

2. Is the purchase contract a fixed-date purchase as per § 286 Number 4 German Civil Code or § 376 German Commercial Code, we are liable as per the statutory regulations. The same applies, if the buyer is entitled to assert the lapse of purpose to further fulfil the contract because of default of delivery caused by us. In this case, our liability is limited to the foreseeable, typically occurring damage, if the default of delivery is not based on an intentional violation of the contract, faults of our representatives or assistants are to be assigned to us. Just as we are liable for default of delivery according to the legal regulations, if it is based on an intentional violation of the contract ? gross negligent or intentional - faults of our representatives or assistants are to be assigned to us. Our liability for damages is limited to the foreseeable, typically occurring damage, if the default of delivery is not based on an intentional violation of contract caused by us.

3. In case that a default of delivery is based on a culpable violation of an essential contractual duty, when faults of our representatives or assistants are to be assigned to us, we are liable as per the statutory regulations on condition that the liability for damages is limited to the foreseeable, typically occurring damage.

4. Otherwise, in case of a default of delivery the buyer is entitled to demand compensation for each full week of delay of 3% of the net amount of the delivery value up to a maximum of 15% of the net amount of the invoice by us.

5. Further liabilities for a default of delivery by us are excluded. Other statutory claims and rights of the buyer which he has besides the claim for damages remain untouched.

6. We are entitled to deliver part shipments or perform by successive instalments at any time if it si reasonable for the customer.

7.  If the default of acceptance infringes with other collaboration duties, we are entitled to charge the customer with the arising damage, including possible additional expenditure. Same applies, if he culpably violates his collaboration duties. The risk of an accidental loss or detoriation of the product is passed on to the customer at the moment when he causes default of acceptance or debtor's delay.

 

V.       Passage of Risk ? Costs of Packaging ? Shipment

1. Loading and delivery are uninsured on the buyer's risk We will try to consider the buyer's wishes and interests regarding the shipping route and kind of shipment; occurring additional costs ? also after agreed transportation at no charge to the buyer ? will be charges to the buyer.

2. Transportation packaging or other packaging, as per the packaging regulations, are nonreturnable, except for pallets. The buyer is obliged to take care of the disposal of the packaging on his own expenses.

3. If the delivery is delayed because of a wish or fault of the buyer, we will store the goods at the buyer's expense and risk. In this case, the notice "Ready to Ship" equates the dispatch.

4. If the buyer wishes, the transportation is going to be insured at his expense.

 

VI.       Warranty - Liability

1. Deficiency claims of the buyer require that he met the obligations to examine and to lodge a complaint properly, as per § 377 HGB (German Commercial Code).

2. If a defect on a product exists that we are responsible for, we are obliged to rework ? excluding the buyer's rights of withdrawal from the contract or to reduce the purchase price (abatement), unless we are authorized by statutory regulations to refuse rectification of defects. The buyer has to grant us an appropriate time limit for rework. The buyer may choose between rectification of the defect (rework) or delivery of a new product. In case of a removal of defects we are obliged to take over all costs unless they increase because the product was transported to a place other than the place of performance. If the rework fails, the buyer is entitled to choose between rescission and abatement. Rectification counts as failed after the second futile attempt, unless further rectification attempts are appropriate due to the subject of the matter of the contract and if they are reasonable. Claims for damages on the following conditions because of the defect can only be put in by the buyer after the rectification failed. The buyer's right to put in further claims for damages on the following conditions remains untouched.

3. Warranty claims of the buyer are struck by the statute of limitations of one year after delivery of the good to the customer, unless we have maliciously concealed a defect; in this case that statutory regulations apply. Our duties in paragraph IV N° 4 and 5 remain untouched.

4. We are legally obliged to rescission of new goods, or respectively, to reduce the purchase price (abatement) without the usually required deadline; if the customer of the sold new movable (consumption good purchase) had the right to demand rescission of the good or reduction (abatement) of the purchase price from our buyer or if the buyer is confronted with the same thereof resulting claim for indemnification. Furthermore, we are obliged to refund the buyer's expenses, especially expenses for transportation, route, work and material, which he had to carry in relation to the end consumer within the bounds of rectification because of a passage of risk from us to the buyer and a defect of the good. The claim is excluded if the buyer fulfilled his examination and complaint obligations to the debtor properly.

5. The obligation as per paragraph VI N° 4 is excluded, if it is a fault because of advertising messages or other contractual agreements which we did not make, of if the buyer granted the end consumer a special warranty. The obligation is also excluded if the buyer himself was not obliged to grant the end consumer a warranty as per the statutory regulations of if he did not complained against a claim against him. It is also valid if the buyer granted the end consumer warranties beyond the statutory measure.

6. We are unrestrictedly liable as per the statutory regulation for violations of life, the body or health which are based on our negligent or intentional violation of duties, our representatives or our assistants, as well as for damages which are covered by the product liability law. For damages of our representatives or our assistants which are not covered in the first sentence and which are based on negligent or gross negligent contract violations as well as on intention to deceive, we are liable as per the statutory regulations. In this case, our liability for damages is limited to the foreseeable, typically occurring damage, unless we, our representatives or our assistants did not act intentionally. We are liable in the same bounds in which we grant a quality or durability warranty for goods or parts. We are only liable for damages which are based on the lack of the granted quality or durability but do not occur on the product itself, if the risk of such damage is obviously covered by the quality and durability warranty.

7. We are also liable for damage caused by simple negligence, if the negligence concerns the violation of contractual duties. Their observance is of significance for reaching the contract purpose (cardinal duties. Our liability for damages is limited to the foreseeable, typically occurring damage.

8. A further liability is excluded regardless of the nature of the claim put in, this especially applies to tortuous claims and to claims to replace futile expenses instead of performance; our liability as per paragraph IV N° 2 to 5 of the contract hereby remains untouched. If our liability is excluded or limited this also applies to our clerical staff's, employees', co-workers', representatives' and assistants' personal liability.

9. Claims for damages of the buyer are struck by the statute of limitations of one your after delivery of the good. This is not the case, if we, our legal representatives or our assistants have caused violations of life, the body or health, or if we or our legal representatives acted intentional or gross negligent, of if our simple assistants acted intentional.

 

VII.       Retention of Ownership

1. Until all claims are fulfilled, including all balance claims in the account current which we have against the buyer now and in the future, the goods remain our property (conditional commodity). In case of a contract-breaking behaviour of the buyer, especially in case of a delay of payment, we are entitled to withdraw the product after setting an appropriate deadline. The withdrawal of the product by us is a revocation from the contract. To levy execution of the conditional commodity is a revocation from the contract. We are entitled to utilize the product upon withdrawal, the utilization proceeds is to be charged against the liabilities of the buyer less the appropriate utilization costs.

2. The buyer has to treat the goods with care and he has to ensure them with their reinstatement value against fire, water and theft. Maintenance and inspection required are to be executed in time by the buyer on his expenses.

3. The buyer is entitled to further sell or use the conditional commodity in a proper business, unless he is in default in payment. Pledges or assignments as security are illegal. The buyer now fully transfers claims arising from resale or other titles of rights (insurance, unlawful act) of the conditional commodity (including all balance claims in the account current) for the safety's sake to us. Herewith we accept the assignment. We authorize the buyer revocably to collect the claims assigned to us by his invoice in his own name. The direct debiting can be revoked at any time if the buyer does not meet the payments. The buyer is not authorized to assign the claim, not even for the purpose of collecting accounts receivable by means of factoring, unless the duty of the factor is established to transfer the counter-performance ? the amount owed ? to us directly as long as we have debt claims against the buyer.

4. Processing or remodelling of conditional commodities by the buyer has to be performed at our shop in any case. If conditional commodities are to be combined with goods which do not belong to us, we acquire joint ownership on the new product in relation to the value of the conditional commodity (invoice total including VAT) to other processed products at the time of combination. For the new products and the conditional commodities, the same rules apply. In case of an inseparable combination of the conditional commodity with another product not belonging to us we acquire joint ownership on the new product in relation to the value of the conditional commodity (invoice total including VAT) to other processed products at the time of combination. If the product is to be seen as the principal thing (as a result of the combination), we and the buyer agree that the buyer transfers prorate joint ownership to us; we hereby accept the transfer. Our so established sole or joint ownership on a product is kept safely at the buyer's.

5. If a third party takes hold of the conditional commodity, especially levy of execution, the buyer will hint to our ownership and inform us immediately to enable us to enforce our ownership rights. Unless the third party is able to reimburse us with court or out-of-court expenses accumulating in this connection, the buyer will be liable.

6. We are obliged to release securities which we are entitled to insofar as the realisable value of our securities exceeds the value of the claim to be secured by more than 10%. We have the choice of the securities to be released.

 

VIII.       Place of Performance ? Venue of Jurisdiction ? Law to Apply

1. Place of performance and venue of jurisdiction for all shipments and payments (including check and bill lawsuits), as well as disputes between the buyer and us resulting from concluded purchase contracts are our headquarters in Treffurt. However, we are also entitled to sue the buyer in his place of abode.

2. The relations between the contracting parties are exclusively regulated by the established law of the Federal Republic of Germany. The application of standard laws for purchasing movable goods and of the law regarding the conclusion of international contracts for movable goods is excluded.

 

As of 01.05.2009

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