General Terms and Conditions
for the supply of systems and their repair and service
by JOVYATLAS GmbH, Fennenweg 4, 26844 Jemgum
(hereinafter referred to as "JOVYATLAS")
1. Part: General Terms and Conditions
Section 1 Scope of validity
(1) The following terms and conditions apply to all contracts concluded between JOVYATLAS and the Customer for the delivery of goods and for repairs to machines and systems. They also apply to all future business relations, even if they are not expressly agreed again. Deviating conditions of the Customer which are not expressly accepted by JOVYATLAS are not binding on JOVYATLAS, even if they are not expressly objected to. Deviating general terms and conditions of the Customer shall not become part of the contract even upon acceptance of the order. (2) All agreements that are made between JOVYATLAS and the Customer in connection with the purchase contracts are set down in writing in the offer, these conditions and the order confirmation from JOVYATLAS. Changes and additions must be made in writing. This also applies to this written form clause. Oral collateral agreements were not made.
Section 2 Offer and conclusion of contract
(1) The offers of JOVYATLAS are subject to change and non-binding unless JOVYATLAS has expressly designated them as binding in writing. In the absence of a special agreement, a purchase contract shall come into effect with the written order confirmation of JOVYATLAS.
(2) The scope of delivery is based on the written order confirmation of JOVYATLAS. The written order confirmation is also decisive for the content of the repair contract and the scope of the repair - unless it was objected to.
(3) We reserve the right to make technical changes and improvements to the delivery, provided that JOVYATLAS proves that this is reasonable for the Customer.
(4) Dimensions, weights, illustrations, drawings and other documents that are part of the non-binding offers of JOVYATLAS remain the property of JOVYATLAS and are only approximately authoritative unless they have been expressly designated by JOVYATLAS as binding. JOVYATLAS reserves the property rights and copyrights especially with regard to samples, cost estimates, drawings and the like, information of a physical and non-physical nature - also in electronic form, which must not be made accessible to third parties.
(5) The Customer allows JOVYATLAS the option of using generally overhauled parts for the spare parts to be newly installed or otherwise used within the scope of the contractually agreed repair.
Section 3 Conditions of payment
(1) The prices of JOVYATLAS are "ex works" (FCA Fennenweg 4, 26844 Jemgum) unless otherwise agreed with the Customer. The packaging costs are not included in the price. JOVYATLAS is entitled to demand a reasonable advance payment upon conclusion of the contract. The prices are the basis for the assessment of VAT. VAT is therefore always charged additionally.
(2) JOVYATLAS reserves the right to change the prices stated in the purchase contract if there are more than 4 months between the conclusion of the contract and the agreed delivery date an there are cost increases after the conclusion of the contract due to additional costs for personell, transport, storage costs, the introduction of any change of taxes and/or material price increases. If the price increases by more than 5% of the originally agreed purchase price, the buyer can withdraw from the purchase contract by means of a declaration in text form within two weeks of receipt of the sellers´s notification of the price change. For deliveries within 4 months, the price agreed in the purchase contract applies in any cases.
(3) The Customer shall also be in default without a reminder from JOVYATLAS if it does not pay the purchase price within 30 days of the due date and receipt of the invoice or an equivalent payment schedule. If the Customer defaults on a payment, JOVYATLAS shall be entitled to demand interest from the relevant point in time at a rate of 9 per cent above the relevant base interest rate (Section 247 of the German Civil Code). JOVYATLAS reserves the right to prove higher damages.
(4) The Customer is only entitled to offsetting, even if notifications of defects or counterclaims are asserted, if the counterclaims have been legally established or recognised by JOVYATLAS or are undisputed. The Customer is only entitled to exercise a right of retention if its counterclaim is based on the same purchase contract.
(5) If, after conclusion of the contract, circumstances become known which make the creditworthiness of the Customer appear to be at risk, e.g. slow payment, repeated payment default, bill protest, disadvantageous economic information, etc., JOVYATLAS is entitled to assert rights of retention against the Customer with regard to the fulfilment of the contractual obligations arising from the business relationship or to demand sufficient security. If the Customer does not immediately comply with a request to provide sufficient security, JOVYATLAS is entitled to withdraw from the contract.
(6) Upon conclusion of the contract, the Customer shall only be informed of the anticipated repair price if this is possible. If the repair cannot be carried out at the cost stated by the Customer, the Customer's consent must be obtained if the stated costs are exceeded by more than 15%. This also applies if JOVYATLAS considers the execution of additional work necessary during the repair.
(7) The Customer shall receive a cost estimate at its explicit request. If the repair is carried out on the basis of a binding cost estimate, reference to this shall be sufficient. Any deviations in the scope of performance shall be listed separately. Otherwise, the prices for materials, parts and other items used and the prices for work, travel and transport costs must be shown separately when calculating the repair costs.
Section 4 Delivery and performance time
(1) Delivery dates or deadlines that have not been explicitly agreed as binding are exclusively non-binding information.
(2) Any deadlines require that all commercial and technical questions have been clarified between the parties to the contract. In addition, the Customer must fulfil all its obligations accordingly. If JOVYATLAS is responsible for the delay, there will be no reasonable extension of the delivery time that would otherwise have been granted. Deadlines and their compliance are subject to correct and timely self-supply. Should such delays in self-supply be announced to JOVYATLAS, JOVYATLAS must give notification of them as soon as possible.
(3) In order to meet the binding delivery deadlines, the delivery item must have left the factory of JOVYATLAS by the end of this period or JOVYATLAS must have notified the Customer that it is ready for dispatch. An exception to this is the case of agreed acceptance. If acceptance has been agreed, the acceptance date is decisive for compliance with the deadline or, if applicable, the notification of readiness of acceptance. Sentence 3 does not apply in the event of justified refusal of acceptance.
(4) If JOVYATLAS is culpably unable to meet an explicitly agreed deadline or is in default for other reasons, the Customer shall grant JOVYATLAS a reasonable grace period - beginning on the day of receipt of the written notice of default by JOVYATLAS or in the case of a deadline determined by calendar. If this period of grace expires without result, the Customer is entitled to withdraw from the contract within the framework of statutory provisions. This shall not affect the statutory exceptions.
(5) Subject to the following limitations, JOVYATLAS shall be liable in accordance with the statutory provisions if the contract is a transaction for delivery by a fixed date or if the Customer is entitled to invoke the discontinuation of its interest in performance of the contract as a result of the delay in delivery for which JOVYATLAS is responsible.
(6) JOVYATLAS shall be liable to the Customer in the event of delay in delivery in accordance with the statutory provisions if the delay in delivery is due to an intentional or grossly negligent breach of duty for which JOVYATLAS is responsible. The fault of its representatives or vicarious agents is attributable to JOVYATLAS.
(7) If the delay in delivery, for which JOVYATLAS is responsible, is based on the culpable breach of a material contractual obligation, JOVYATLAS shall be liable in accordance with the statutory provisions; its liability shall be limited to the foreseeable, typically occurring damage.
(8) If the delay in delivery by JOVYATLAS is based on a culpable violation of a non-essential contractual obligation, the Customer is entitled to demand flat-rate compensation for each completed week of delay. This compensation shall amount to 0.5% for the respective full week of the delay, but in total not more than 5% of the value of the part of the contractual delivery which cannot be used in accordance with the contract due to the delay. In the event of damages to the Customer as a result of JOVYATLAS's delay in repair services, the Customer shall be granted the corresponding right. Flat-rate compensation for the delay shall then amount in total to a maximum of 5% of the repair price for that part of the item to be repaired by JOVYATLAS, which cannot be used in time due to the delay.
(9) Further claims arising from delay in delivery shall be determined exclusively in accordance with Section 6.
(10) If there are delays in call-off, dispatch or acceptance for reasons for which the Customer is responsible, the Customer shall bear the costs incurred by the delay.
(11) JOVYATLAS is entitled to partial deliveries and partial services at any time, provided this is reasonable for the Customer.
Section 5 Transfer of risk / acceptance
(1) The transfer of risk of the delivery item to the Customer takes place when the item leaves the factory or the warehouse. In the case of acceptance, the transfer of risk takes place upon acceptance. These rules on the transfer of risk also apply if partial deliveries are made, JOVYATLAS has assumed additional costs (e.g. shipping costs) or, alternatively, in the event of notification of readiness of acceptance by JOVYATLAS. If the Customer has been notified of the completion of the commissioned work and any agreed testing has taken place, the Customer is obliged to accept the work. Acceptance shall be deemed to have taken place if acceptance does not take place through no fault of JOVYATLAS, although the completion of the repairs was reported two weeks before.
(2) Paragraph 1 also applies if there is a delay in the handovers described in paragraph 1 for which JOVYATLAS is not responsible.
(3) If the commissioned work was not in accordance with the contract, the obligation to remedy defects shall apply to JOVYATLAS. However, there is no such obligation to remedy defects if the defect is due to circumstances for which the Customer is responsible. This also applies if the defect is irrelevant to the interests of the Customer. Acceptance cannot be refused on the basis of a defect in accordance with sentences 2 and 3 of this Section.
Section 6 Warranty/liability
(1) The Customer shall inspect the received goods for completeness, transport damage, obvious defects, condition and their properties. Obvious defects are to be reported by the Customer to JOVYATLAS in writing within two weeks of delivery of the contractual object. (DELIVERY)
(2) JOVYATLAS has no warranty obligation if the Customer has not reported an obvious defect in writing in due time. Insofar as a defect in the goods exists for which JOVYATLAS is responsible and which has been reported by the Customer in writing in due time, JOVYATLAS is obliged - to the exclusion of the Customer's rights to withdraw from the contract or to reduce the purchase price - to provide subsequent performance unless JOVYATLAS is entitled to refuse subsequent performance on the basis of the statutory regulation. The Customer shall grant JOVYATLAS a reasonable period of time for subsequent performance for each individual defect. (DELIVERY)
(3) Upon acceptance, JOVYATLAS's liability shall cease to apply insofar as it concerns recognisable defects and the Customer has not expressed any reservations regarding the claim for a specific defect in writing. After acceptance of the repair, JOVYATLAS shall be liable for any other defects in the form of rectification of defects. All other claims of the Customer in the event of a repair are excluded from this with the exception of paragraph 5. Irrespective of this, the liability - including for the consequences - of JOVYATLAS does not apply if improper modifications or repair work has been carried out by the Customer or third parties. Excluded from this are urgent cases of danger to operational safety and to prevent disproportionately large damage. But in this case JOVYATLAS must be informed immediately. The same applies if JOVYATLAS has not complied with a reasonable deadline set for it to remedy the defect. In the cases of sentences 5 and 7, the Customer has the right to have the defect remedied itself or by third parties at the expense of JOVYATLAS. (REPAIR)
(4) Subsequent performance can be carried out at the discretion of JOVYATLAS by eliminating the defect or by delivering new goods. Parts replaced by JOVYATLAS become the property of JOVYATLAS. During subsequent performance, the reduction of the purchase price or withdrawal from the contract by the Customer is excluded. A rectification of defects shall be deemed to have failed after the second unsuccessful attempt. If subsequent performance has failed or if JOVYATLAS has refused subsequent performance altogether without justification, the Customer may, at its discretion, demand a reduction in the purchase price or declare its withdrawal from the contract.
(5) In the event of damage to the repair item caused by JOVYATLAS, JOVYATLAS is entitled at its discretion to repair the item at its expense or to deliver a new item. JOVYATLAS shall bear the indirect costs of remedying the defect (e.g. costs of removal and installation, for auxiliary staff, etc.), but only if JOVYATLAS is not disproportionately burdened by this. The scope of costs of the spare parts refers to the contractually agreed repair price and limits this in terms of amount. In addition, paragraph 9 applies accordingly to liability. If JOVYATLAS - taking into account the statutory exceptions - fails to make use of a reasonable period of time granted to it to remedy the defect, the Customer is entitled to a price reduction within the framework of statutory provisions. The Customer's right to reduce the purchase price also applies in other cases of failure to remedy the defect. Should the repair be demonstrably of no interest to the Customer despite a reduction, the Customer is entitled to withdraw fom the contract. (REPAIR)
(6) The Customer may only assert claims for damages under the following conditions due to the defect if subsequent performance has failed or JOVYATLAS refuses subsequent performance without justification. The right of the Customer to assert further claims for damages under the following conditions remains unaffected.
(7) JOVYATLAS shall be liable, without prejudice to the provision in
Section 4 (4)-(9) of this contract and the following limitations of liability without limitation, for injury to life, body or health which are based on a negligent or intentional breach of duty by JOVYATLAS, its legal representatives or its vicarious agents, as well as for damages which are covered by liability under the German Product Liability Act, and for all damages which are based on intentional or grossly negligent breaches of contract as well as fraudulent intent by JOVYATLAS, its legal representatives or its vicarious agents. Insofar as JOVYATLAS has given a quality and/or durability guarantee with regard to the goods or parts thereof, JOVYATLAS shall also be liable within the scope of this guarantee. However, JOVYATLAS shall only be liable for damage which is based on the absence of the
guaranteed quality or durability, but which does not occur directly to the goods, if the risk of such damage is obviously covered by the guarantee of quality and durability.
(8) JOVYATLAS shall also be liable for damage caused by simple negligence insofar as this negligence concerns the breach of such contractual obligations, whose compliance is of particular importance for the achievement of the purpose of the contract (cardinal obligations). However, JOVYATLAS is only liable insofar as the damage is typically associated with the contract and is foreseeable. JOVYATLAS shall not be liable for simple negligent breaches of secondary obligations that are not essential to the contract. The limitations of liability contained in sentences 1 to 3 also apply to the liability of the legal representatives, executive employees and other vicarious agents of JOVYATLAS.
(9) In the event of culpable violation of essential contractual obligations, JOVYATLAS shall also be liable for gross negligence of non-executive employees and for slight negligence, in the latter case limited to reasonably foreseeable damage typical for the contract. Section 6 (6)-(12) shall also apply in the event of a breach of the contractual ancillary obligations caused by JOVYATLAS, which results in a non-contractual use of the contractual object.
(10) Any further liability is excluded regardless of the legal nature of the claim asserted. Insofar as the liability of JOVYATLAS is excluded or limited, this also applies to the personal liability of its employees, workers, staff, representatives or vicarious agents.
(11) In particular, no warranty shall be assumed if natural wear and tear, faulty assembly or commissioning by the Customer or third parties, faulty or negligent handling, improper and/or unsuitable use, improper maintenance, unsuitable operating materials, defective construction work, unsuitable building ground, chemical, electronic or electrical influences were the cause - unless JOVYATLAS was responsible for this. In the event of improper repairs, unapproved modifications and the like by the Customer or third parties, JOVYATLAS shall not be liable for the consequences arising as a result.
(12) Rights arising from defects of title only exist if the notification of the infringement of property rights or copyrights to JOVYATLAS by the Customer is made immediately. JOVYATLAS must retain the right to all defensive measures. In particular, the defect of title may not be based on an instruction of the Customer (in particular drawings and samples of the Customer). Thus, the Customer shall indemnify JOVYATLAS from all claims of third parties arising from the infringement of the rights of third parties if JOVYATLAS is not at fault for this infringement. This applies accordingly if the Customer has arbitrarily modified the delivery item or used it in a manner not in accordance with the contract. Furthermore, the Customer must support JOVYATLAS to a reasonable extent in the defence of the asserted claims.
If necessary, JOVYATLAS may make modifications in order
to eliminate the infringement of property rights or copyrights, provided that this is appropriate and reasonable for the Customer.
(13) The warranty in the case of repairs by JOVYATLAS does not apply, particularly if the defect is based on a circumstance that is attributable to the Customer. In particular, JOVYATLAS shall not be liable if defects or damage has occurred due to faulty instructions and/or information, such as drawings, samples, etc. of the Customer and JOVYATLAS is not at fault.
Section 7 Retention of title / right of lien
(1) JOVYATLAS retains title to the goods (goods subject to retention of title) until receipt of all payments arising from the purchase contract. JOVYATLAS also retains title to all accessories, spare parts and replacement units used until receipt of all payments from the contract.
(2) The Customer is entitled to sell the goods delivered by JOVYATLAS in the ordinary course of business. JOVYATLAS is entitled to revoke the Customer's authority to sell by means of a written declaration if the Customer defaults on the fulfilment of its obligations towards JOVYATLAS, and particularly on its payments, or if other circumstances become known which make its creditworthiness appear doubtful. The Customer hereby assigns to JOVYATLAS the claims from a resale of the goods subject to retention of title. The receivables from a resale also include receivables from a bank that issued or confirmed a letter of credit in favour of the Customer (= reseller) within the scope of the resale. JOVYATLAS hereby accepts this assignment.
(3) The Customer is authorised to collect the outstanding amounts from the resale of the goods. JOVYATLAS can revoke the collection authorisation of the Customer if the Customer is in default with the fulfilment of its obligations towards JOVYATLAS, especially its payments, or if other circumstances become known which make its creditworthiness appear doubtful. If the collection authorisation lapses or is revoked by JOVYATLAS, the Customer shall, upon request, immediately inform JOVYATLAS of the debtors of the assigned claims and provide JOVYATLAS with the information and documents required for collection.
(4) The Customer shall immediately inform JOVYATLAS in writing of all access by third parties, in particular of enforcement measures and other impairments of its property, and shall draw attention to the property/right of JOVYATLAS. The Customer shall compensate JOVYATLAS for all damages and costs arising from a breach of this obligation and from necessary intervention measures against access by third parties.
(5) If the Customer does not fulfil its payment obligation despite a reminder from JOVYATLAS, JOVYATLAS may demand the return of the goods subject to retention of title still in its ownership without prior notice and may demand the assignment to JOVYATLAS of any existing claims for return against third parties on account of the goods subject to retention of title. The transport costs incurred
shall be borne by the Customer. JOVYATLAS is authorised to utilise the goods subject to retention of title after retention. The proceeds of the utilisation shall be set off against the Customer's liabilities - less reasonable utilisation costs.
(6) JOVYATLAS is entitled to insure the delivery item against damage at the expense of the Customer. This does not apply if the Customer can prove that it has taken out such insurance itself.
(7) As soon as an application is made for the opening of insolvency proceedings against the Customer, JOVYATLAS may withdraw from the contract and demand the return of the delivery item.
(8) JOVYATLAS receives a right of lien for its claim from the repair contract. The right of lien exists for the Customer's repair item which has come into its possession on the basis of the contract. The right of lien is extended in such a way that it can also be asserted for other claims from work carried out earlier, spare parts deliveries and other services if these are associated with the repair item. The right of lien applies to other claims arising from the business relationship only insofar as these are undisputed or legally binding.
(9) Insofar as claims of JOVYATLAS are secured beyond doubt to a total of more than 125% by the assignments or reservations declared above, the surplus of outstanding debts or goods subject to retention of title shall be released at the request of the Customer at the discretion of JOVYATLAS.
Section 8 Limitation period
The Customer's claims shall lapse after 12 months. The statutory periods apply to claims for damages and to claims based on defects in a building or for delivery items that were used for a building and caused its defectiveness. If JOVYATLAS carries out repair work on a building and thereby causes its defectiveness, the statutory periods also apply.
Section 9. Use of software
(1) Insofar as software is included in the scope of delivery, the Customer is granted a non-exclusive right to use the delivered software including its documentation. It is provided for use on the delivery item intended for this purpose. Use of the software on more than one system is prohibited.
(2) The Customer may only copy, revise or translate the software or convert object code into source code to the extent permitted by law (Sections 69a ff. of the German Copyright Act). The buyer is obliged not to remove manufacturer's details - especially copyright notices - or to change them without the prior express consent of JOVYATLAS.
(3) All other rights to the software and the documentation, including copies, remain with JOVYATLAS or the software supplier. The granting of sub-licences is not permitted.
Section 10 Compensation for damages in the event of withdrawal of the buyer
If the buyer withdraws from the contract with the consent of JOVYATLAS, JOVYATLAS shall be entitled to claim flat-rate compensation of 20% of the value of the order unless the buyer can prove that the damages caused by the withdrawal are significantly lower.
2. Part: Special terms and conditions for repairs to systems
Section 11 Unfeasible repair
(1) If a cost estimate has been produced, the services and expenses incurred for this (e.g. troubleshooting time) are to be borne by the Customer if the repair is omitted for reasons for which JOVYATLAS is not responsible. In particular, these reasons are e.g. the non-occurrence of the faults complained about during the troubleshooting or the impossibility of obtaining spare parts.
(2) In the event of unfeasible repair, the item in question will only be returned to its original condition at the explicit request of the Customer. The Customer shall bear the costs incurred in this connection. Sentences 1 and 2 do not apply if the work carried out was not necessary.
Section 12 Repair in the factory of JOVYATLAS
(1) The Customer shall bear the risk of transport.
(2) The Customer may demand that the repair item be transported to and from the place of delivery - including any packaging and loading. Unless otherwise agreed in writing, the Customer shall bear the costs incurred in this connection. The Customer also has the right to deliver the repair item to JOVYATLAS and to collect it again from JOVYATLAS itself or through an authorised representative after the repair has been carried out. The Customer shall also bear the costs incurred in this connection unless otherwise agreed in writing. At the request of the Customer, the outward and, if applicable, return transport shall be insured against the insurable transport risks in accordance with sentence 1 of this paragraph. Unless otherwise agreed in writing, the Customer shall bear these costs.
(3) No insurance cover shall exist during the repair. The Customer is obliged to maintain the existing insurance cover for the repair item. Insofar as the Customer so wishes, insurance cover for these risks can be taken out by JOVYATLAS at the Customer's expense.
(4) If the Customer is in default of acceptance, JOVYATLAS may charge storage costs. The repair item can also be stored outside the factory at the expense of the Customer at the discretion of JOVYATLAS. The risk of storage shall be borne by the Customer.
Section 13 Repair outside the factory of JOVYATLAS / cooperation and technical assistance of the Customer
(1) The repair personnel shall be supported by the Customer in carrying out the repair at the Customer's expense. The Customer is also obliged to provide technical assistance at its own expense. This technical assistance is a condition for the immediate commencement of the repair after the arrival of the repair personnel and for the work without delay until acceptance. If special plans or instructions are required from JOVYATLAS for the fulfilment of the order, JOVYATLAS will make these available to the Customer in good time.
(2) The Customer is obliged to take the special measures necessary for the protection of persons and property at its own expense and to inform and notify the head of the repair measure of any existing special safety regulations if this is of importance to the repair personnel. JOVYATLAS must be informed of violations of such special safety regulations committed by the repair personnel. If it is not otherwise possible or acceptable, the Customer may refuse the offender access to the repair site in case of violations after consultation with JOVYATLAS.
(3) In the event of a breach of duty by the Customer, JOVYATLAS has the right, after setting a reasonable deadline, to carry out or have carried out the actions incumbent on the Customer at the Customer's expense; however, there is no obligation to do so. Otherwise, the statutory rights and claims of JOVYATLAS remain unaffected.
Section 14 Warranty if repair is not carried out
(1) In the event of unfeasible repair (cf. Section 10), JOVYATLAS shall not be liable for damage to the repair item, the breach of secondary contractual obligations or for damage that did not occur to the repair item itself.
(2) However, JOVYATLAS shall be liable in the event of intent, gross negligence on the part of executive bodies or executive employees, as well as in the event of culpable violation of essential contractual obligations. However, JOVYATLAS is liable in the case of culpable violation of essential contractual obligations - except in the event of intent or gross negligence on the part of executive bodies or executive employees - only for the damage typical for the contract which is reasonably foreseeable.
3. Part: Final provision, applicable law
(1) The relations between the parties to the contract shall be governed exclusively by the law applicable in the Federal Republic of Germany. The application of the uniform law on the international purchase of movable goods and the law on the conclusion of international purchase contracts for movable goods is excluded.
(2) The place of performance for all claims arising from the contract concluded between the parties shall be the registered office of JOVYATLAS (Jemgum).
(3) The place of jurisdiction is Leer (local court) or Aurich (regional court). However, JOVYATLAS is entitled to file a suit at the Customer's headquarters.
(4) Should any provision of these General Terms and Conditions be or become invalid or unenforceable, this shall not affect the validity of the remaining provisions of the General Terms and Conditions.
General terms and conditions of purchase
of JOVYATLAS GmbH, Fennenweg 4, 26844 Jemgum
(hereinafter referred to as "JOVYATLAS")
Section 1 Scope of validity
(1) The following conditions of JOVYATLAS apply to all contracts concluded between JOVYATLAS and the Seller for the delivery of goods. Deviating conditions of the Seller which are not expressly accepted by JOVYATLAS are not binding on JOVYATLAS, even if the latter does not expressly object to them.
(2) All agreements made between the Seller and JOVYATLAS in connection with the purchase contracts are set out in writing in the purchase contracts and in these conditions.
Section 2 Offer and conclusion of contract
(1) If the Seller does not accept an order within two weeks of receipt, JOVYATLAS is entitled to cancel the order at any time.
(2) Calculations, drawings, plans and other documents which are handed over in connection with the offer by JOVYATLAS remain the property of JOVYATLAS, which reserves all copyrights to these documents. If the Seller does not accept the order of JOVYATLAS within two weeks of receipt, these documents shall be returned to JOVYATLAS without delay. The Seller undertakes to maintain complete confidentiality about all information received from JOVYATLAS. This obligation continues for a further 5 years even after termination of the contract or, in the absence of conclusion, after failure of the negotiation. The obligation does not apply to developments which are already obvious (are generally known, belong to the state of the art, etc.) and are therefore no longer secret or protectable. If a development becomes obvious at a later date, the obligation shall expire from that point in time.
Section 3 Payments
(1) The agreed prices are fixed prices and apply delivered free of charge. The packaging costs are included in the price. The price is quoted inclusive of the statutory VAT applicable at the time. All invoices of the Seller must show the order number specified by JOVYATLAS.
(2) Payment will be made within 90 days without deduction. The period shall commence upon receipt of the contractual performance and a proper and verifiable invoice. However, in the case of acceptance of premature deliveries, the period shall commence at the earliest on the agreed delivery date.
(3) JOVYATLAS is entitled to the full statutory set-off and retention rights. It is entitled to assign all claims arising from the purchase contract without the Seller’s consent. The Seller is not entitled to assign claims from the contractual relationship to third parties without the prior written consent of JOVYATLAS.
Section 4 Delivery period
(1) The delivery period or delivery date specified by JOVYATLAS in the order is binding for the Seller.
(2) If the Seller is in default with the delivery, JOVYATLAS is entitled to the statutory claims. If JOVYATLAS asserts claims for damages, the Seller is entitled to prove that it is not responsible for the breach of duty.
Section 5 Warranty / Liability
(1) JOVYATLAS is obliged to inspect the contractual object for deviations in quality and quantity within a reasonable period of time after delivery by the Seller and to notify the Seller of any defects. The notification of obvious defects is in time if it is received by the Seller immediately after delivery of the goods; the notification of hidden defects is in time if it is received by the Seller within eight working days after their discovery.
(2) JOVYATLAS is entitled to the statutory warranty claims against the Seller. The Seller shall be liable to JOVYATLAS to the statutory extent. In case of imminent danger, JOVYATLAS is entitled to remedy the defects itself at the expense of the Seller.
(3) The limitation period for warranty claims is three years from delivery.
Section 6 Liability of the Seller / insurance cover
(1) If a claim for damages is asserted against JOVYATLAS by third parties due to product damage for which the Seller is responsible, the Seller shall indemnify JOVYATLAS on first request from all claims of third parties including the necessary costs of defending these claims if the Seller has established the cause in its sphere of control and organisation.
(2) If JOVYATLAS has to carry out a recall action due to an event of damage or loss within the meaning of Section 6 (1), the Seller is obliged to reimburse JOVYATLAS for all expenses arising from or in conjunction with the recall action carried out by the former. JOVYATLAS shall, insofar as it has the opportunity and it is reasonable in terms of time, inform the Seller of the content and scope of the recall action and request it to comment. Further legal claims of JOVYATLAS remain unaffected by this.
(3) If claims are asserted against JOVYATLAS by third parties because the Seller's delivery infringes a legal property right of the third party, the Seller undertakes to indemnify JOVYATLAS on first request from the claims including all necessary expenses incurred by JOVYATLAS in connection with the claim by the third party and its defence. JOVYATLAS is not entitled to acknowledge the claims of the third party and/or to make agreements with the third party regarding these claims without the written consent of the Seller. The limitation period for these claims for indemnification is three years, calculated from the time JOVYATLAS becomes aware of the claim by the third party.
Section 7 Retention of title
(1) All parts (goods subject to retention of title) and tools provided by JOVYATLAS remain the property of JOVYATLAS. If the Seller carries out processing or alterations, these shall be carried out for JOVYATLAS. If the goods subject to retention of title from JOVYATLAS are processed with items not owned by it, it shall acquire co-ownership of the newly created item in proportion of the value of the goods subject to retention of title supplied by it to the other processed items at the time of processing. The same applies if an item provided by JOVYATLAS is inseparably mixed with other items not belonging to it. If, after the mixing, the Seller's item is to be regarded as the main item, the Seller undertakes to transfer the proportional co-ownership to JOVYATLAS. In any case, the Seller shall safeguard the sole ownership and/or co-ownership of JOVYATLAS for it.
(2) Tools provided by JOVYATLAS may only be used by the Seller for the goods ordered by JOVYATLAS and shall be insured by the Seller at its own expense against fire, water and theft. The Seller hereby assigns the claims from these insurances to JOVYATLAS, who hereby accepts this assignment with this agreement. The Seller shall carry out maintenance and repair work on these tools in good time and at its own expense in accordance with the respective instructions for use.
(3) All tools, parts and documents received from JOVYATLAS may only be used by the Seller outside of this contract and/or passed on to third parties or made available to third parties with the written consent of JOVYATLAS. After fulfilment of the respective contract, the Seller shall return them to JOVYATLAS without delay and at its own expense.
Section 8 Place of jurisdiction / place of performance / final provisions
(1) The place of performance and exclusive place of jurisdiction for deliveries and payments as well as for all disputes arising between the parties from the contracts concluded between them shall be Jemgum or the court having statutory jurisdiction for Jemgum.
(2) The relations between the parties to the contract shall be governed exclusively by the law applicable in the Federal Republic of Germany. The application of the uniform law on the international purchase of movable goods and the law on the conclusion of international purchase contracts for movable goods is excluded.
(3) Should a provision be or become invalid, this shall not affect the validity of the remaining provisions.