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JS Aupperle GmbH Terms and Conditions of Sale and Delivery

As of: July 2011


1.) Scope of application:
We supply and provide services solely on the basis of the following terms and conditions even if said conditions are not expressly agreed. The conditions count as having been accepted by the purchaser on acceptance of delivery at the latest insofar as the customer is not a non-commercial or self-employed consumer.

2.) Conclusion of contract:
The contract is formed by our confirmation of order or by our realisation of the order. The content and scope of the contract are documented by the order confirmation or by our invoice. No supplementary oral agreements are made. Changes to the contract must be put in writing.

3.) Delivery time:

All deliveries and services are supplied as quickly as possible. If delivery is not made by the agreed date, the purchaser can set a period of grace of one month after two months have expired with the declaration that they will withdraw from the contract if the deadline expires in vain. Any further claims, in particular compensation for delay, are excluded except in case of gross negligence or premeditation on our part. In case of delays in deliveries and services due to force majeure, strikes, unforeseeable disruption of operations or other inevitable events over which the vendor has no influence, the vendor is freed from the delivery or service or is empowered to deliver a device which comes as close as possible to the device ordered. In case of non-delivery or insufficient delivery the vendor shall cede their rights towards their supplier to the purchaser at the purchaser’s request.

4.) Prices:

The net price stated in the contract plus VAT and freight or transport costs apply. If delivery is not made until four months after conclusion of the contract, a reasonable price increase by the vendor is permissible if it is due to circumstances which only arose after expiry of the contract and were not foreseeable. The purchaser is entitled to withdraw from the contract in case of price increases of more than 10% of the agreed price.

5.) Reservation of right of modification:

Manufacturer-related further development or enhancement of or changes to products are regarded as approved insofar as they do not cause any impairment of the intended use of the devices ordered. The device which corresponds most closely to that ordered shall then be supplied. This shall then be accepted by the purchaser as fulfilment. Both parties are entitled to withdraw from the contract should such a solution not be possible.

6.) Payments:

Our invoices are payable immediately on receipt. The payment terms agreed in individual cases shall be taken into account. After the payment deadline has expired, the customer is in arrears without further reminders. The consumer shall pay interest on the debt whilst in arrears in accordance with statutory provisions. We reserve the right to prove and claim higher damages due to delay. Bills of exchange and cheques are only services on account of performance. The purchaser is the sole bearer of financing and leasing risks. The non-conclusion of the financing or leasing contract has no effect on the effectiveness of the concluded purchase contract. The purchaser can only offset with counter-claims or insofar exercise retention of goods if this is approved by us or has been legally bindingly established.

7.) Requirement to check and give notice of defects:
Full-time merchants and those natural persons or legal entities of equal legal standing must check the goods or service immediately on delivery. Complaints must be put in writing within six days of the date of delivery.

8.) Warranty and liability:

If devices or services are defective, if guaranteed properties are missing or if they become defective within the warranty period due to manufacturing or material defects, we will supply a remedy or replacement delivery at our expense if reported in good time and in case of justified complaint. Multiple rectifications of defects are permissible. If the rectification or replacement delivery fails within an appropriate period of time or we do not perform it, the customer can demand a price reduction or withdrawal from the contract at their discretion. The customer is not entitled to withdraw from the contract in case of just minor defects. All further customer claims of whatever kind are excluded insofar as the requirements of Section 309 Fig. 7 of the new edition of the German Civil Code are not fulfilled or we have not acted fraudulently. This also applies to consequential damage caused by a defect. We grant 12 months’ guarantee for new equipment and 6 months for repairs and used equipment. No warranty is given for used equipment or repairs unless such a warranty has been expressly agreed. The customer had sufficient opportunity to check and examine the goods and is aware of the condition of the goods. If a delivery is only partly defective or if there is a partial delay in delivery, or if it is partly impossible for us to deliver due to reasons for which we are responsible, the customer is obliged to accept the partial service unless the partial fulfilment is of no objective interest to them. Information about the condition, composition, suitability or useability of equipment or deliveries and services do not represent any kind of assurance or guarantee without our express written declaration. The purchaser is exclusively responsible for selecting equipment or goods, for their suitability and useability for their purposes or those of third parties and also for the results achieved by their use. The warranty does not cover maintenance work such as cleaning, adjustments or the replacement of wearing parts with a limited service life which becomes necessary due to operation of the equipment. We invoice our usual maintenance rates for such maintenance work or repairs. The warranty becomes null and void in case of
a.) damage to parts caused by force exerted by the customer or third parties,
b.) interventions by the customer or third parties without our approval or in case of non-professional repairs to equipment,

c.) original parts not being used,

d.) additional equipment or operating materials not approved by us being used and if the purchaser is unable to prove that the defect being claimed for was not caused by this,
e.) claims which have arisen because the instructions for use and operation were not observed,

f.) damage caused by force majeure, water damage, fire damage or connection of the equipment to the wrong electrical voltage,
g.) non-performance of the necessary maintenance or servicing work at the appointed intervals.
For the rest, we provide a warranty in accordance with the above regulations. Liability on our part, on whatever legal grounds, insofar as it is permissible and insofar as the requirements of the cases in Section 309 Fig. 7 of the new edition of the German Civil Code are not fulfilled and we have not acted fraudulently, is limited to the extent of the company liability insurance policy concluded with Allianz Versicherungs-AG (2 million euros for personal injury and 1 million euros for material damage).

9.) Retention of title:

We retain the title to the equipment and articles supplied as reserved goods until full payment of the purchase price has been made and until all claims arising from the business relationship have been settled. The retention of title is also not affected by installation of the equipment and articles. The purchaser shall keep our property safe free of charge. They are entitled to sell the retained goods within the scope of normal business. The purchaser is not entitled to pledge or transfer the goods by way of security. The purchaser shall cede all claims arising from the legitimate or unauthorised selling on of the retained goods or from some other legal reason (e.g. compensation or insurance services) as a precaution. If the ceded claim is added to an outstanding account, the purchaser shall immediately cede a part of the balance of the current account to us to the value of this claim. In case of access to the retained goods by third parties the purchaser shall point out that it is our property and inform us immediately. Costs and losses arising herefrom shall be borne solely by the purchaser. The purchaser is responsible for all expenses pertaining to the retained goods during the retention of title and is liable for their deterioration regardless of whether they are responsible for it. In case of conduct contrary to the contract by the purchaser, in particular payment arrears or if circumstances become known which cast doubt on their creditworthiness, we are entitled to recover the retained goods at the purchaser’s expense and furthermore to demand the cession of the purchaser’s right to recover against third parties or to demand the provision of security or to withdraw from the contract. The retained goods shall be recovered to the value of the realisable proceeds. Further claims for compensation, in particular for lost earnings, remain reserved. If a recovered item has been used the recovery takes place at the residual value. If the purchaser does not accept our determination of the residual value this shall be determined bindingly for both parties by an expert as arbitrator at the purchaser’s expense. Recovery of the retained goods by us does not represent any withdrawal from the contract insofar as this is legally permissible. If the value of the security conceded effectively exceeds the value of the claim by more than 20 % we are obliged to retransfer or release this proportion at the purchaser’s discretion if the purchaser demands this. Ownership of the retained goods and ceded claims are transferred to the purchaser once all our claims arising from the business relationship with the purchaser have been settled.

10.) Risk assumption:
Liability for the risk of destruction and/or deterioration of the goods transfers to the purchaser on transfer of the goods regardless of regulation of the transport costs.

11.) Final provisions:
The vendor is entitled to make use of and store the data and information received in the course of the business relationship in terms of and subject to the German Data Protection Act. Should one or more of the above provisions be or become ineffective this does not affect the effectiveness of the remaining provisions. The ineffective provision shall be replaced by an effective one which implements the economic objective it pursued as closely as possible. The same applies for loopholes in the contract. The purchaser’s rights arising from this contract are not transferable. The law of the Federal Republic of Germany applies for these conditions and the business relationship between the parties with the exception of the Uniform Law on the International Sale of Goods. The place of fulfilment and of jurisdiction for deliveries and all other claims arising from the parties‘ business relationship shall be the vendor‘s domicile if the purchaser is a merchant or if they have no general domestic place of jurisdiction, or if they relocate their place of residence or habitual place of abode outside the territory of the Code of Civil Procedure after conclusion of the contract, or if their place of residence or habitual abode is not known at the time that an action is filed.

 

JS Aupperle GmbH conditions of purchase

1. We buy and source our goods and services solely on the basis of the following conditions. We do not recognise our suppliers’ conditions of sale. These are formally contradicted herewith.

2. 
The supplier undertakes to exempt us from all warranty and liability claims by our contractual partners, their customers or third parties and to deal with them insofar as they are well-founded and derive from our supplier’s deliveries of goods or services. We do not recognise their liability and warranty limitations. These are formally contradicted herewith.

3. 
The warranty and liability period is five years calculated from the date of despatch of the goods to our customers. We do not recognise our suppliers’ warranty and/or liability regulations as from the date of despatch of goods to our customers. We do not recognise our suppliers’ warranty and/or liability limitation regulations. These are formally contradicted.

4. 
The place of fulfilment and place of jurisdiction for disputes with our suppliers who have the characteristics of a general merchant is Ulm as far as is permissible.

5. 
Should a part of these provisions be ineffective, this does not affect the validity of the remaining provisions.