General Sales and Shipping Conditions
for Services rendered by JDS SOMMER GmbH
I. Validity of General Business Conditions of JDS SOMMER GmbH
The general business and shipping conditions are valid for all contracts entered into between JDS SOMMER GmbH and its customers as well as for all other agreements which are made in the context of business relations. The conditions contained on this page thus also apply to all future business relations, even if they are not expressly repeated and agreed upon elsewhere. The general or business or purchasing conditions of our clients are understood not to form part of agreements even where JDS SOMMER GmbH does not specifically waive such client conditions.
II. Payment Conditions and Prices
- All invoices of JDS SOMMER GmbH are due within 7 days of the date on the invoice. The 7 day duration refers to receipt of funds by JDS SOMMER GmbH.
- In the event of late payments, JDS SOMMER GmbH reserves the right to refuse further services and deliveries. In the event of late payments by the customer, JDS SOMMER GmbH reserves the right to charge interest in the amount of 1.5% above the federal rate of the Bank of Germany (Deutsche Bundesbank)
- Prices are understood to be EXW our shop as per 1990 Incoterms, excluding packaging and applicable taxes. Prices are understood to be valid only for the individually agreed upon amount of work.
- The contractual partner can only back charge with indisputable and legally determined demands against the purchase prices indicated by JDS SOMMER GmbH.
- The client is elligible for back charging rights only if they are based upon the same, identical contractual relationship. Insofar as the client is a registered merchant, the client shall not be eligible for back charging rights unless his counter-demands have a firm, legally proven basis or are otherwise acceptable to JDS SOMMER GmbH.
III. Quotation and Contractual Agreement
- All quotations remain subject to confirmation.
- Orders, with respect to type and scope, only become legally valid contracts through an order confirmation sent by JDS SOMMER GmbH.
- It is understood without exception that when we confirm an order, that the execution of such an order may be adversely affected by internal interruptions, sub-contractors or governmental interference. If such interruptions should occur, we reserve the right to choose a delay in delivery, a reduction in scope or to opt out of the agreement entirely. It is agreed that in such event sourcing from outside vendors is not an option. The customer can opt out of the agreement under the conditions stated above, herein, if he has given us an adequate opportunity to make a subsequent delivery.
IV. Delivery and Shipping
- Delivery deadlines begin from receipt of all documents necessary to process the order.
- Deadlines for delivery agreed upon by JDS SOMMER GmbH will be kept as close as possible. Delivery deadlines are only legally binding upon JDS SOMMER GmbH if they are confirmed in formal written agreements. Approximate delivery deadlines are not legally binding. Instead, they are understood to be possible delivery dates, which JDS SOMMER GmbH endeavors to meet.
- Should the customer demand changes or additional work after the agreement has been made or the order has been issued and confirmed, or should other circumstances occur that make it impossible for JDS SOMMER GmbH to maintain the delivery date, whereas the circumstances that caused this delay were outside the control of JDS SOMMER GmbH, then the delivery date will be moved by a reasonable span of time to permit completion of the work.
- If it is evident that the delay of the delivery date is due to mobilization, acts of war, insurrection, strikes, lock-outs or other such circumstances considered force majeure in accordance with common law, then JDS Sommer GmbH is within its rights to delay the delivery date for the duration of the force majeure hindrance or to opt out of the entire agreement or part of the agreement concerning completion of the work that still needs to be finished.
- If the hindrance causing a delay in the delivery date lasts longer than three months, then subsequent to the setting of a new and reasonable delivery date, the customer is within his rights to opt out of the agreement for the portion of it that, due to the hindrance, has not yet been completed.
- Shipping costs are the responsibility of and shall be paid by the customer. The shipping risk is transferred to the customer at the moment the goods have been made available to the freight forwarder. The choice of shipping paths and means is at the option of the customer. The shipping risk for the original documents (from which JDS SOMMER GmbH produces computer files) transfers to JDS SOMMER GmbH as soon as the shipment has entered the premises of JDS SOMMER GmbH or the scanned images have entered the computers of JDS SOMMER GmbH.
- JDS SOMMER GmbH warrants the creation of conversion data, which resembles the source document or data as closely as possible via scanning, digitizing or conversion. The applicable conversion method depends on the specific type of source document and type of conversion ordered. A complete conversion is not warranted. It cannot be technically ruled out that some variance will occur between the source document and the converted data. JDS SOMMER GmbH will not warrant that all details of a scanned document or plan in a file that has been made visible will be properly visible in a print.
- Information contained in handbooks/documentation and/or promotional material concerning the expandability and possible options for a product or service is based upon the actual availability of such options and is not legally binding especially since the products and services are constantly developed further and adapted, which can have an influence on the validity of previously released information. Some of the aforementioned information may also concern future developments.
- The warranty period is 24 months beginning with the delivery date.
- Any claims are ruled out the instant the customer begins to alter the plans, documents or files delivered by JDS SOMMER GmbH or allows third parties to make such alterations, unless the customer can prove that the alleged errors or problems were not entirely or partially caused by these alterations and that their adjustment by JDS SOMMER GmbH have not been hindered by such customer alterations.
- The customer is obligated to check the delivered files immediately and to notify us of any obvious discrepancies right away, latest within 8 days of delivery, in writing. Delayed claims result in the loss of compensation rights. Errors and omissions that are not obvious shall be made known to us immediately after they have been recognized.
- If the performance of JDS SOMMER GmbH is insufficient and JDS SOMMER GmbH has been given reasonable notice, we may elect to either fix or repair the files in question or entirely replace them with new work. Should the correction of such errors be insufficient, the customer has a right, having set a deadline, and given sufficient notice, to reject any re-work or new files after the expiration of the deadline. Rights to compensation for consequential and any other damages related to the aforementioned insufficient performance are expressly ruled out and waived.
- Checking the contents of the delivered files and/or prints before using them in construction, planning and projects is the expressed responsibility of the customer.
VI. Rights to compensation for damages
- Rights to compensation for damages of any kind are expressly ruled out. This applies to damages incurred as a result of late delivery as well as to warranty issues such as errors and omissions. Rights to compensation for consequential damages both for late delivery and warranty issues such as errors and omissions or the absence of promised characteristics are expressly ruled out to the extent permissible by common law.
- The exclusion of the rights for compensation of damages is invalid in the event of pre-meditated or blatantly negligent breach of contract on the part of JDS SOMMER GmbH.
- So long as no direct personal or property damages are involved, the maximum liability JDS SOMMER GmbH shall be responsible for is €2,500.00.
- JDS SOMMER GmbH will not be liable for the recovery of plans, documents or data, unless JDS SOMMER GmbH is itself responsible for the destruction or loss of the plans, documents or data through blatant negligence. The customer is responsible to ensure through the application of appropriate, state of the art technology, that the drawings, documents and data being submitted to JDS SOMMER GmbH for the purpose of having work done on them can be reconstructed through a reasonable effort. The customer is particularly responsible to make copies of the original source documents for back-up purposes, before any documents are delivered to JDS SOMMER GmbH for the purpose of having services rendered concerning these documents.
VII. Utilisation Caveat
- Files, plots and prints delivered by JDS SOMMER GmbH, be they main or auxiliary items, may be made available to the customer only for proofing purposes until payment in full of all invoices related to the business dealings with the customer and issued by JDS SOMMER GmbH has been received.
- The customer is obligated to safely and appropriately store the files that are subject to the JDS SOMMER GmbH utilization caveat.
- After the payment deadline is expired, and in the event that payment in full has not been received for all outstanding charges in the relationship between the two parties, the files, plots and prints that form the deliverable in the relationship, which are covered by the utilization caveat, the customer is not authorized to use these deliverables for any purpose until payment in full has been received by JDS SOMMER GmbH. In the event that the customer contravenes this provision concerning the use of the deliverables at issued that JDS SOMMER GmbH authorizes such use outside of the provisions herein, the customer is considered to have waived all rights and demands against his or her customer(s) and or end user(s) of the deliverables in favor of JDS SOMMER GmbH. The customer is obligated to make all information concerning such third party dealings as are described in the aforementioned sentence, regarding the ability to enforce and benefit from such a transfer of such benefits from the customer to JDS SOMMER GmbH, available to JDS SOMMER GmbH to ensure maximum compensation. In such an event, which is intended to compensate JDS SOMMER GmbH for payments due, the customer is obligated to assist JDS SOMMER GmbH to the extent possible by word and deed to ensure final compensation in full of JDS SOMMER GmbH for services rendered or products delivered.
JDS SOMMER GmbH and the customer each obligate the other to confidentiality, which is not limited in duration, concerning business and internal secrets and not to divulge such secrets to any third parties or to utilize such secrets in any manner, unless JDS SOMMER GmbH is working together with such a third party for the purpose of completing the order(s) at issue between the customer and JDS SOMMER GmbH. The files, drawings, documents and other information that one contractual party receives from the other as a result of the business relationship at issue may only use such files, drawings and documents for the purpose of completing each respective party’s contractually agreed upon tasks within the framework of the agreement between the parties. In the event that it becomes necessary for JDS SOMMER GmbH to make a disclosure to a third party company in order to fulfill its contractual obligation towards the customer within the terms of the agreement, JDS SOMMER GmbH is obligated to enter into a confidentiality agreement consistent with the terms herein with such a third party prior to makings such a disclosure. The confidentiality agreement signed with such third parties shall prohibit such third parties from any further disclosures to any other party and to maintain the subject information in confidence.
IX. Location of Order Completion/Governing Law and Venue/Court of Competent Jurisdiction
- The Location of order completion is the municipality of Frankfurt am Main.
- The exclusive governing law and venue is the laws of the Federal Republic of Germany.
- The court of competent jurisdiction is that of Frankfurt am Main. This includes disputes arising with regards to cheques and currency exchange, insofar the customer is a registered merchant.
- Should some or any of the provisions of these general business or sales conditions be or become partially or entirely unenforceable or invalid, then the agreement shall be deemed separable, such that the invalidity or in-enforceability of any such provision shall not adversely affect the remainder of the agreement or general business or sales conditions herein. Rather, such provisions which may be deemed unenforceable or invalid shall be replaced by the purpose, however worded differently, to achieve such a purpose, towards the end that the original purpose of such a provision be in effect and take the place of the original wording.
- The are no contemporaneous agreements or understandings outside of this contents of this text. This forms the entire agreement. Any understanding or agreements outside of the provisions herein only achieve validity if they are confirmed by an instrument in writing.
JDS Sommer GmbH
D-60433 Frankfurt am Main
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