General terms of payment and delivery
- Our present general terms of delivery and payment apply exclusively to all – even prospective – contracts for deliveries and other services including service contracts with entrepreneurs, corporate bodies under public law and public separate estates. The purchaser’s alternative conditions of purchase will not be recognised even if we don't expressly object or if we execute delivery or other services with knowledge of the purchaser’s divergent conditions of purchase. Upon contract conclusion, the purchaser declares his agreement to the present general terms of delivery and payment to the full extent.
- Our offers are non-binding. Verbal agreements, promises, assurances and guarantees given by our employees in connection with the contract conclusion will become binding only after we confirm these in writing.
- All specifications such as dimensions, weights, illustrations, descriptions, drawings, price lists and other printed matter have been approximately yet optimally ascertained. In this respect they are non-binding. Models and drawings shall remain our property.
- “Purchaser” in the sense of these terms and conditions is also the “customer” in service contracts.
- The prices are quoted ex works plus freight and VAT except when otherwise stipulated.
- We are entitled to alter the price to a corresponding extent if four weeks after contract conclusion charges or other third-party costs which are included in the agreed upon price change or arise.
- We reserve the right to increase the agreed upon price of quantities that have not been delivered if due to an alteration of the raw materials and/or economic situation circumstances arise which make the production and/or the purchase of the relevant product substantially expensive compared to the time when the price was agreed upon. In this case, the purchaser can cancel the order within four weeks after notification of the price increase with a four-week notice.
- Typing errors or miscalculations entitle us to withdraw from the contract if the purchaser refuses an adjustment. The purchaser’s claims for compensation in this case are excluded.
III. Payment and settlement
- The purchasing price is to be paid immediately after delivery without cash discount deduction if nothing else has been agreed upon or has been stated in our invoices. It has to be paid in such a manner that we can have the amount on the due date. Costs of payment transactions will be borne by the purchaser. The purchaser has a retention right and a set-off authorisation only to the extent that his counterclaims are uncontested or valid. This also applies to claims for liability of defects.
- If the date of payment is missed or in case of default, we charge interest amounting to 8% points above the basic lending rate unless higher interest rates are agreed upon. Claims for other damages caused by delay are reserved.
- The purchaser is in default 10 days after the due date and receipt of the invoice/payment schedule or receipt of the service at the latest.
- If upon contract conclusion it becomes apparent that our payment claim is jeopardised by the purchaser’s inability to perform, we are entitled to the rights stated in § 321 of the German Civil Code (defence of insecurity). We are also entitled to invoice all claims that are not time barred from the current business relationship with the purchaser. Besides, the defence of insecurity ranges over all other outstanding deliveries and services arising from the business relationship with the purchaser.
- An agreed upon cash discount always only refers to the invoice value excluding freight and requires the full settlement of all due payables of the purchaser at the time of granting the discount.
- We are entitled, despite the purchaser’s alternative terms, to credit payments against the purchaser’s older debts. If costs and interest have arisen due to older claims, we are entitled to credit the payment against these costs first, then against the interest and then finally against the main payment.
- If the purchaser is in default, we reserve the right to make other deliveries only after settlement of the due payment. Moreover, in this case we are entitled to demand advance payment.
IV. Execution of deliveries, delivery term and date of delivery
- Our obligation to deliver is subject to the proper and punctual delivery to us unless the improper or delayed delivery is due to our fault.
- Information on delivery times is approximate. Delivery terms commence on the date on which we confirm the order and apply only on condition that all details of the order are clarified on time and the purchaser’s obligations are fulfilled on time.
- The time of dispatch ex works or factory is crucial for the observance of delivery terms and dates. They are deemed observed with notification of readiness for dispatch if the goods cannot be dispatched on time through no fault on our side.
- Events of force majeure entitle us to postpone delivery by the duration of the hindrance and an appropriate start-up time. This also applies when such events occur during a delay. Force majeure includes monetary, trade policy and other sovereign measures, strikes, lockouts, disruptions of operations not caused by us (e.g. fire, machinery breakdown, lack of raw materials or energy), blocked transport routes, delays in importation/customs clearance as well as all other circumstances which arise due to no fault of our own which make deliveries considerably difficult or impossible. It is insignificant whether these circumstances arise at our premises, those of the supplier or of the preliminary supplier. If due to the aforementioned events the execution of the contract becomes infeasible for one contractual partner, in particular if the execution of the contract substantially delays by more than 6 months, then this party is entitled to withdraw from the contract.
V. Retention of title
- All delivered goods shall remain our property (goods subject to retention of title) until all claims are fulfilled particularly the respective account balance claims which we are entitled to within the framework of the business relationship (current account reservation) and the claims which are established by the insolvency administrator on a unilateral basis by way of choice of fulfilment. This also applies to conditional claims arising in the future e.g. from bills of exchange and also if payments for specifically identified claims are made. This current account reservation expires conclusively with the settlement of all outstanding claims which are included in this current account reservation at the time of payment.
- Handling and processing the goods subject to retention of title is done according to § 950 of the German Civil Code for us as manufacturers without committing us. The processed item is considered as goods subject to retention of title within the meaning of no. 1. If the goods subject to retention of title are processed, combined and mixed with other goods by the purchaser, we are proportionately entitled to co-ownership of the new item in the ratio of the invoice value of the goods subject to retention of title to the invoice value of the other goods used. If our ownership expires due to combination or mixing, the purchaser transfers to us the ownership rights over the new stock or the item in the scope of the invoice value of the goods subject to retention of title and stores it for us at no cost. Our co-ownership rights are also considered as goods subject to retention of title according to no. 1.
- The purchaser may only sell the goods subject to retention of title in the ordinary course of business under his usual terms and conditions of business and if he is not in default provided that the claims from the resale according to no. 4-6 are devolved to us. The purchaser is not entitled to other dispositions of the goods subject to retention of title. The purchaser is obligated to protect the goods subject to retention of title from damage due to improper storage, theft and other damages with the diligence of a prudent businessman and also insure them sufficiently at replacement value. The purchaser assigns claims from such insurance to us. We accept this assignment.
- The claims from the resale of goods subject to retention of title including all securities which the purchaser acquires for the claim are assigned to us. They serve as security to the same extent as the goods subject to reservation. If the purchaser sells the goods subject to retention of title together with other goods not sold by us, the claim from the resale will be assigned to us in the ratio of the invoice value of the goods subject to retention of title to the invoice value of the other sold goods. In case of sale of goods in which we have co-ownership shares as per no. 2, we will be assigned a part corresponding to our co-ownership share. If the purchaser uses the goods subject to retention of title for the fulfilment of a service contract, the claims from this service contract shall be assigned to us in the same scope in advance. We hereby accept the assignments defined in this paragraph.
- The purchaser is entitled to collect claims from the resale or other usage of the goods subject to retention of title. This collection authorisation expires if we revoke it, upon default of payment, non-payment of a bill or application for institution of insolvency proceedings at the latest. We will only make use of our right of revocation if upon contract conclusion it becomes apparent that our claims for payment from this or other contracts with the purchaser will be jeopardised by his inability to perform. At our request, the purchaser is obligated to inform his clients immediately about the assignment to us and give us the information and documents necessary for the revocation.
- An assignment of the claims from the resale is inadmissible unless it involves an assignment by means of true factoring of which we are notified and whereby the factoring proceeds exceed the value of our secured claim. Our claim shall be due immediately upon crediting of the factoring proceeds.
- The purchaser has to inform us immediately about attachment or other negative impacts. The purchaser is entitled, in case of attachments or such measures on the goods subject to retention of title, to refer to the property of JUNKERWERK Linder GmbH + Co. KG. The purchaser shall bear all costs which arise due to the rescission of the measure or transporting the goods subject to retention of title back unless they are refunded by third parties.
- If the purchaser is in default, we are entitled to take back the goods subject to retention of title and to this end access the purchaser’s establishment if need be. The same applies if upon contract conclusion it becomes apparent that our claims for payment from this or other contracts with the purchaser will be jeopardised by his inability to perform. Taking back the goods does not mean withdrawal from the contract. The provisions of the Insolvency Statute remain unaffected.
- If the invoice value of the existing securities exceeds the secured claims including secondary claims (interest, costs or the like) by more than 20% in total, we are obligated to release securities at our discretion at the purchaser’s request.
- In case of an acceptance pursuant to § 640 of the German Civil Code, this has to be done immediately in the supplier’s plant or our warehouse after notification of readiness to accept. The personal acceptance costs will be borne by the purchaser.
- If acceptance does not occur, does not occur on time or does not occur in full due to no fault on our side, we are entitled to dispatch the goods without acceptance or store them at the expense and risk of the purchaser and to charge him.
VII. Dispatch, transfer of risk, packaging, partial deliveries
- We determine dispatch route and means as well as forwarding agent and carrier.
- If transport on the intended route or to the intended location in the stipulated period is impossible or considerably hampered through no fault of our own, we are entitled to deliver using a different route or to a different location; the arisen additional charges shall be borne by the purchaser. The purchaser shall be given the opportunity to express his views.
- The risk, even that of confiscation of goods, in all transactions, is transferred to the purchaser upon handover of the goods to a forwarding agent or carrier or upon leaving the warehouse at the latest. We will only arrange for insurance at the instruction and expense of the purchaser. Responsibility and costs of unloading shall be borne by the purchaser.
- The goods are delivered unpacked. If this is customary in trade, we shall deliver the goods packed. We shall arrange for packaging, means of protection and/or transportation aids at the expense of the purchaser according to our experience. They will be taken back at our warehouse. We shall not assume the purchaser’s costs for return transport or for the disposal of the packaging.
- We are entitled to partial deliveries to a reasonable extent. Over-deliveries and short deliveries of completed amounts customary in this trade are allowed.
VIII. Call orders
- For call orders, goods that are ready for dispatch must be collected immediately otherwise we are entitled to dispatch them at the expense and risk of the purchaser at our discretion after the lapse of a grace period set by us or store them at our own discretion and immediately charge the purchaser.
- For transactions with consecutive delivery, we are to be given orders and classification for approximate similar monthly quantities; otherwise we are entitled to make the regulations at our discretion.
- If the individual orders exceed the contractual quantities in total, we are entitled but not obligated to deliver the excess quantity. We can invoice the excess quantity at the prices applicable at the time of ordering or delivery.
- The quantities ordered in the call orders are binding for the purchaser for a period of 4 weeks for the finished parts and 8 weeks for the required raw material. The purchaser is obligated to take the quantities fully and to pay or at least refund the costs fully in due time.
IX. Liability for material defects
- Material defects in goods are to be reported in writing immediately, seven days since delivery at the latest. Material defects which are not discovered within this period even after thorough inspection are to be reported in writing prior to lapse of the agreed upon or statutory period of limitation. Any processing and handling is stopped immediately.
- After the purchaser has taken the goods pursuant to § 640 of the German Civil Code, complaints about material defects which were detectable during the agreed upon type of acceptance are excluded.
- In case of justified notification of defects within the time limits, we can remedy the defects at our discretion or deliver an item free of defects (supplementary performance). If supplementary performance fails or is rejected, the purchaser can reduce the purchasing price or withdraw from the contract after setting an appropriate term which then lapses. If a defect is not significant, the purchaser is entitled to the right to reduce the price only.
- If the purchaser does not give us the opportunity immediately to see the material defect, does not immediately avail the rejected goods or samples thereof upon request, all rights due to the material defect shall not apply.
- For goods that have been sold as downgraded material – e.g. so called lla-material – the purchaser is not entitled to any rights in case of material defects with regard to the specified downgrading reasons and such with which he normally has to reckon with.
- We shall not assume expenses which arise as a result of the sold goods being delivered to another place other than the purchaser’s headquarters or branch unless this corresponds to their contractual use.
- The purchaser’s right of recourse according to § 478 of the German Civil Code remains unaffected.
- We do not guarantee certain application or certain suitability of the goods unless an alternative is expressly agreed upon in writing; besides, the risk of application and usage lies exclusively on the purchaser.
X. General limitation of liability
- We are liable for breach of contractual and non-contractual duties, in particular for impossibility, delay, default during contract initiation and unauthorised action even for our executive staff and other vicarious agents only in cases of intent and gross negligence, limited to the damage typical for the contract which was foreseeable during contract conclusion. Our liability for defects is limited to the amount of the charges calculated by us for the delivery or the service rendered.
- These limitations do not apply in case of culpable breach of significant contractual duties, if the achievement of the contractual goal is jeopardised, in case of mandatory liability according to the Product Liability Act, in case of harm to life, body and health and also not if and to the extent to which we maliciously conceal the material defect or we have guaranteed its absence. The regulations on the burden of proof remain unaffected.
- In the case whereby we are obligated to pay damages due to ordinary negligence, our liability to pay damages for material damage and personal injury is limited to the amount of coverage of our liability insurance.
- Unless otherwise agreed, contractual claims which arise on the purchaser’s side against us or which arise in connection with the delivery of the goods shall become time barred one year after delivery of the goods. This term also applies to those goods which are used for assembly according to their usual manner of use and have caused its defectiveness. Our liability due to intentional and gross negligent breach of duties as well as the limitation of statutory rights to recourse remain unaffected. In cases of supplementary performance, the limitation period does not commence to run afresh.
XI. Place of fulfilment, place of jurisdiction and applicable law
- Place of fulfilment for our deliveries is delivery ex works of the supplier, for other deliveries, our warehouse. Place of jurisdiction is, at our option, our headquarters or the purchaser’s place of business.
- The law of the Federal Republic of Germany under exclusion of the UN Convention on the International Sale of Goods applies to all legal relationships between the purchaser and us.
- If a purchaser who is based outside the Federal Republic of Germany (foreign purchaser) collects goods or forwards or dispatches them abroad, the purchaser has to provide us the export certificate that is necessary for fiscal purposes. If this certificate is not provided, the purchaser has to pay the VAT on the invoice amount applicable to deliveries within the Federal Republic of Germany.
- For deliveries from the Federal Republic of Germany to other EU member states, the purchaser has to inform us prior to delivery about his VAT ID number under which he pays profit and income tax within the EU. Otherwise, he has to pay us the VAT amount owed by us for our deliveries in addition to the agreed upon purchasing price.
- When invoicing deliveries from the Federal Republic of Germany to other EU member states, the VAT regulation of the respective recipient member state applies if either the purchaser is registered for VAT in another EU member state or if we are registered for VAT in the recipient member state.
- If a clause of these general terms of delivery and payment is or becomes invalid, it will not affect the effectiveness of the rest of the conditions.
JUNKERWERK Linder GmbH + Co. KG
Headquarters/Factory I: Martinstraβe 31, D-42655 Solingen, tel.: +49 (0) 212 2800-0, fax: +49 (0) 212 2800-59
Factory II: Alkotmány u. 13, H-9200 Mosonmagyaróvár, tel.: +36 (06) 96 566277, fax: +36 (06) 96 566270
As of: January 2020