General Terms and Conditions of Business and Delivery for Services of JDS SOMMER GmbH (GTC)
I. Applicability of the general terms and conditions of JDS SOMMER GmbH
These general terms and conditions of business and delivery apply to all contracts concluded between JDS SOMMER GmbH and the customer, as well as to all other agreements made within the scope of the business relationship. They therefore also apply to all future business relationships, even if they are not expressly agreed upon again. The customer's general terms and conditions are expressly excluded from the contract, even if JDS SOMMER GmbH does not expressly object to them.
II. Payment terms and prices
All invoices from JDS SOMMER GmbH are payable within 7 days of the invoice date. The date of receipt of payment by JDS SOMMER GmbH is decisive.
In the event of default, JDS SOMMER GmbH is entitled to withhold further deliveries and services. If the customer defaults on payment, JDS SOMMER GmbH is entitled to charge interest at a rate of 1.5% above the respective discount rate of the German Federal Bank.
All prices are ex-works, excluding freight and packaging, plus statutory VAT. Prices are valid only for the agreed quantity.
The contractual partner may only offset undisputed or legally established claims against the purchase price claims of JDS SOMMER GmbH.
The customer is only entitled to rights of retention insofar as they are based on the same contractual relationship. If the customer is a merchant, they are not entitled to rights of retention unless their counterclaim has been legally established, is undisputed, or has been acknowledged by JDS SOMMER GmbH.
III. Offer and conclusion of contract
All offers are subject to change without notice.
Orders only become binding with regard to the type and scope of the order upon order confirmation by JDS SOMMER GmbH.
Order confirmations are subject to the condition that execution is not hindered by any unforeseen events, particularly disruptions in our own operations or those of our suppliers, or by official measures. Should such events occur, we reserve the right, at our discretion, to postpone, limit, or withdraw from the contract. The purchase of goods from third parties is expressly excluded in this case.
Under the aforementioned conditions, the customer may withdraw from the contract if they have previously given us sufficient opportunity to make subsequent deliveries.
IV. Delivery and shipping
Delivery times begin after receipt of all documents required for the execution of the order.
JDS SOMMER GmbH will make every effort to meet agreed delivery deadlines. Delivery deadlines are only binding for JDS SOMMER GmbH if they are expressly confirmed in writing or otherwise agreed upon in writing. Approximate delivery times are not binding agreements, but rather indications of a possible delivery date, which JDS SOMMER GmbH will endeavor to meet.
If, after placing the order, the client requests changes or additions to the order, or if other circumstances arise that make it impossible for JDS SOMMER GmbH to meet the delivery date, even though JDS SOMMER GmbH is not responsible for these circumstances, the delivery date will be postponed by a reasonable period of time.
If the failure to meet a binding delivery date is demonstrably due to mobilization, war, riot, strike or lockout, or to other circumstances for which JDS SOMMER GmbH is not responsible according to general legal principles, JDS Sommer GmbH is entitled to postpone performance for the duration of the impediment plus a reasonable start-up period, or to withdraw from the contract in whole or in part with respect to the unfulfilled part.
If the impediment lasts longer than three months, the customer is entitled, after setting a reasonable grace period, to withdraw from the contract in whole or in part with respect to the unfulfilled portion. Withdrawal must be in writing if JDS SOMMER GmbH fails to perform within the grace period. If performance of the contract becomes wholly or partially impossible for JDS SOMMER GmbH due to the aforementioned reasons, it is released from its delivery obligation.
Shipping costs are generally borne by the customer. Risk passes to the customer as soon as the shipment has been handed over to the carrier or has left the premises of JDS Sommer GmbH for dispatch. The choice of shipping route and method is at the sender's sole discretion.
Risk for documents sent by the customer to JDS Sommer GmbH passes to JDS Sommer GmbH as soon as plans, documents, or files are received undamaged at the premises of JDS Sommer GmbH or on the computers of JDS Sommer GmbH.
V. Warranty
JDS Sommer GmbH guarantees the creation of conversion data that closely replicates the original data through scanning, digitization, or conversion. The appropriate method is applied depending on the specific order. Complete conversion is not guaranteed. It is possible that deviations may occur in the converted data from the original data, which are technically unavoidable.
JDS Sommer GmbH does not guarantee that all details of a scanned document, plan, or object will be perfectly recognizable in a displayed file or on a printout. When scanning plans in 2D, it is possible that some content may not be captured perfectly. When scanning objects in 3D, such as buildings or machine parts, it is possible that hidden parts of the object may not be captured or that edges may be blurred. These blurring effects in the generation of the scanned image of a plan or the point cloud of an object can lead to inaccuracies or errors during further processing.
Particularly during the subsequent conversion to CAD data or CAD models, whether in 2D or 3D, the JDS process can lead to inaccuracies in the scan data resulting in errors in the CAD file or model. Depending on the original, object, and field of expertise, the generated CAD data and models can be expected to correspond between 80% and 99% to the input provided by a CAD professional. JDS Sommer GmbH does not perform any engineering evaluation, plausibility checks, or planning assessments.
The customer is responsible for the technical and planning review and assessment of the CAD data supplied by JDS Sommer GmbH, both in 2D and 3D. If the customer incorporates the CAD data into their further planning, construction, or design, they alone bear the responsibility for the technical accuracy of the CAD data. JDS Sommer GmbH assumes no liability for the technical accuracy. The customer must review the supplied CAD data and models within the agreed acceptance period. Any defects must be reported to JDS Sommer GmbH immediately. See point 5.
Information in the manual/documentation and/or advertising material relating to product expansion options or available accessories is non-binding, especially because the products are subject to constant adaptation and the information may also refer to future developments.
The warranty period is 24 months and begins on the delivery date.
Any warranty claims are excluded as soon as the customer begins to edit or have modified by third parties the plans, documents, CAD data and CAD models or the files supplied by JDS Sommer GmbH, unless the customer proves that the reported defects were not caused wholly or partly by such modifications and that the rectification of defects is not made more difficult by the modification.
The customer is obligated to inspect the delivered files immediately and to report any obvious defects in writing without delay, and no later than 8 days after delivery. Defects reported late will void any warranty claims. Hidden defects must be reported in writing immediately upon discovery.
In the event of defective performance by JDS Sommer GmbH and timely notification of the defect, JDS Sommer GmbH is entitled, at its discretion, to either correct the defective files or recreate them. If the defect cannot be remedied, the customer, after setting a reasonable grace period and notifying JDS Sommer GmbH that they will refuse further attempts to remedy the defect after the grace period expires, is entitled to rescind the contract or reduce the price. Claims for damages due to non-performance are expressly excluded.
The customer is solely responsible for checking the content of the delivered files, models and/or printouts before using them in his designs, plans and projects.
VI. Claims for damages
Claims for damages of any kind are expressly excluded, both with regard to any delayed delivery and in the case of warranty defects. Claims for damages arising from positive breach of contract, as well as claims for consequential damages due to the delivery of delayed or defective goods or the absence of warranted characteristics, are excluded, unless otherwise stipulated by law.
The exclusion of liability for damages does not apply in cases of intentional or grossly negligent breach of contract by JDS Sommer GmbH.
Except in cases of direct personal injury or property damage, JDS SOMMER GmbH's liability is limited to a total of EUR 2500.00.
JDS Sommer GmbH is not liable for the recovery of plans, objects, documents, or data unless the destruction or loss of the plans, objects, documents, or data is attributable to its gross negligence or willful misconduct. The customer is responsible for implementing appropriate security measures, in accordance with the state of the art, to ensure that drawings, documents, objects, and data can be reconstructed and restored with reasonable effort. In particular, it is the customer's responsibility to create backup copies of plans, documents, and data or to retain the originals before submitting the documents to JDS Sommer GmbH for processing.
If the customer sends objects to JDS Sommer GmbH, they are responsible for insuring them during transport. If JDS Sommer GmbH ships objects, it uses service providers such as DHL or UPS but does not insure the objects separately. If insurance is desired, the customer must inform JDS Sommer GmbH and bear the additional costs for the insurance.
VII. Reservation of rights of use
Files, plots and printouts supplied by JDS Sommer GmbH may only be used by the customer for testing purposes until all claims of JDS Sommer GmbH arising from the business relationship with the customer, both principal and incidental, have been paid in full.
The customer is obliged to properly store the files that are subject to the usage rights of JDS SOMMER GmbH.
The customer is not authorized to use the files, plots, and prints subject to usage rights after the payment deadline has passed, unless payment has been made in full. Should the customer nevertheless sell the files and JDS SOMMER GmbH approve this, the customer hereby assigns to JDS SOMMER GmbH, upon conclusion of the contract, all claims against its customers. The customer is obligated to provide JDS SOMMER GmbH with all information necessary to assert these rights and to perform all necessary acts of cooperation.
VIII. Confidentiality
JDS SOMMER GmbH and the customer mutually agree to maintain the confidentiality of all business and trade secrets of the other party indefinitely and not to disclose them to third parties or use them in any way, unless JDS SOMMER GmbH collaborates with a third-party company for the purpose of fulfilling the order. Documents, drawings, and other information received by the other contracting party as a result of the business relationship may only be used within the scope of the respective contractual purpose.
Should JDS SOMMER GmbH disclose such information to a third-party company for the purpose of fulfilling the contract, JDS SOMMER GmbH is obligated to conclude a confidentiality agreement with that third-party company as well, prohibiting disclosure and obligating it to maintain confidentiality.
IX. Place of performance, applicable law and jurisdiction
The place of performance is Frankfurt am Main.
The law of the Federal Republic of Germany applies exclusively.
The place of jurisdiction is Frankfurt am Main, also for check and bill of exchange proceedings, provided the customer is a fully qualified merchant within the meaning of the law.
X. Other
Should individual provisions of these terms and conditions be or become wholly or partially invalid, this shall not affect the validity of the remaining provisions. Instead, the invalid provision shall be replaced by a provision that most closely approximates the intended purpose.
No side agreements have been made.
Amendments to this contract are only valid if confirmed in writing.