Terms of Service
§ 1 Definitions and Scope, Defense Clause, Applicable Law
In these General Terms and Conditions (GTC), Jankowski GmbH & Co. KG is referred to as Jankowski. Contractual partners of Jankowski are referred to as customers in these General Terms and Conditions. These General Terms and Conditions apply exclusively to all current and future legal relationships between Jankowski and customers. We do not recognize any customer conditions that conflict with or deviate from our General Terms and Conditions, even if we do not expressly object to them. The law of the Federal Republic of Germany applies to all legal relationships between Jankowski and customers and to the assessment of these General Terms and Conditions. The application of the UN sales law is excluded. These General Terms and Conditions shall also apply exclusively if Jankowski carries out a delivery or service without reservation in the knowledge of a customer’s conflicting or deviating General Terms and Conditions or if a customer’s delivery or service is accepted without reservation by Jankowski.
§ 2 Offers
Contract offers by Jankowski are indivisible and non-binding. The same applies to offers and price information in brochures, advertisements, etc. Unless the circumstances indicate otherwise, offers by Jankowski only represent an invitation (invitatio ad offerendum) to the customer, which in turn is a binding and definitive contract offer (also known as an order). submit to. The customer is always bound to his contract offer (order) for 3 weeks. Jankowski is entitled, but not obliged, to accept the contract offer during this period. The acceptance takes place through the creation of an order confirmation. Proof of receipt of the order confirmation by the customer is not required, nor is it required to be in writing. Electronic form (email) is sufficient in this respect. Jankowski reserves the right of ownership and copyright to all parts of the offer, this applies in particular to drawings, photos, descriptions and calculations. This also applies to documents designated as “confidential”. The customer may not pass these on to third parties, publish them, duplicate them or make them accessible to third parties in any other way without prior written consent.
§ 3 Scope of delivery
The content of the order confirmation is decisive for the scope of delivery. If the order confirmation contains deviations from the customer’s previous contract offer (order) and there have been discussions or negotiations between the parties beforehand, the order confirmation is considered a commercial confirmation letter. Jankowski is permitted to change technical data and designs that serve to adapt to the state of the art and that do not result in any deterioration in the suitability or life expectancy of the product. Before making such a change, however, Jankowski will endeavor to obtain the customer’s permission. If permission is not granted, Jankowski reserves the right to withdraw from the contract without this resulting in claims for damages. The customer must ensure compliance with all protective measures of all kinds that may be sensible or prescribed during delivery or assembly (traffic safety obligations, accident prevention regulations, etc.) at his own expense and risk. This also applies during commissioning or any maintenance, repair or conversion work. The customer must create or provide foundations, energy and supply lines, suction devices, supporting structures and support structures at his own expense and risk in accordance with statutory or official regulations and within the framework of the requirements to be communicated by Jankowski within a specific period of time.
§ 4 Prices
Unless otherwise agreed, prices are “ex works” in 56593 Horhausen, Industriepark 22 and exclude packaging, freight, postage, transport insurance, tolls, loading and unloading, load securing measures, assembly and commissioning. Value added tax is not included in the price information. It is shown separately at the statutory rate on the day of invoicing and is to be paid additionally by the customer. The customer shall bear all domestic and/or foreign taxes, customs duties and levies of all kinds incurred as a result of the delivery and service. If there are more than six months between the conclusion of the contract and the actual delivery date and Jankowski can prove that material prices or wage costs including ancillary wage costs have increased by more than 5% compared to the time the contract was concluded, the parties undertake to reach a new price agreement that reflects the price increase balances. If no agreement is reached, Jankowski is entitled to set a price at its reasonable discretion. The customer has the right to take legal action if he does not agree with the provision made.
§ 5 Payment, set-off, statute of limitations
Invoices are due and payable within 30 days of receipt of the invoice – fax or email is sufficient for calculating the deadline – without any deductions. Deduction of discount requires special written agreement. If the customer is in default, he must pay default interest of at least nine percentage points above the base interest rate in accordance with Section 288 BGB and also pay a flat rate of EUR 40 in accordance with Section 288 (5) BGB. The customer may only declare offsetting with counterclaims if these have been recognized by Jankowski in terms of reason and amount or have been determined by a final judgment of a court. In this respect, the customer is also not entitled to exercise a right of retention. We are always entitled to demand appropriate security or advance payment. The above statements apply accordingly to offsetting and the right of retention.
Claims by Jankowski for payment by customers become time-barred after 5 years, in deviation from Section 195 of the German Civil Code. Section 199 BGB applies to the start of the limitation period.
§ 6 Liability for damages
If Jankowski is entitled to a claim for damages instead of performance against the customer according to the statutory provisions, this amounts to a flat rate of 20% of the agreed price – without taking into account services already provided and subject to Jankowski being able to provide evidence of a higher damage. The customer is entitled to prove that damage was either not incurred at all or was significantly lower than the flat rate.
§ 7 Delivery time
Delivery periods – also referred to as so-called binding delivery periods – to which Jankowski has committed are, regardless of the different designation, always subject to the reservation of timely delivery to us and are extended appropriately in the event of measures in the context of labor disputes, in particular strikes and the occurrence of unforeseen obstacles that are beyond Jankowski’s control, insofar as they make timely fulfillment of the contract impossible or disproportionately expensive. In this case, Jankowski will inform the customer immediately. If the customer is entitled to a contractual penalty or a lump sum for damages due to the delivery time being exceeded, the parties hereby agree that with payment or offsetting or offsetting – insofar as permissible, see § 5 of these General Terms and Conditions – the contractual penalty shall also be deemed to be all possible claims of the customer from any delayed delivery in full and finally should be considered compensated.
§ 8 Transfer of risk
Delivery always means delivery “ex works” (56593 Horhausen, Industriepark 22). Jankowski’s obligation is to keep the goods ready for collection. The customer bears the costs of packaging and checking the goods as well as all other costs and risks of transport and loading and unloading. The customer must also organize unloading and transport from the unloading point to the installation or assembly site at his own expense and risk. In this respect, Jankowski only owes information or provision of the requirement profiles on request. The transfer of risk, including the risk of accidental loss or accidental deterioration of the goods, takes place from the time the goods are made available for collection to the customer, even if loading and transport and, if applicable, assembly are carried out at the customer’s request by Jankowski with its own vehicle and employees or by A third-party freight forwarder and third-party assembly workers are involved.
§ 9 Inspection duties and complaint
Customers must check the ordered goods for conformity with the contract at their own expense and risk immediately after receiving notification that the goods are ready for collection, but usually within two weeks at the latest. Material defects or defects of title, the absence of a property of the subject matter of the contract guaranteed by Jankowski as well as excess, insufficient or incorrect delivery (hereinafter referred to as defects) must be asserted in writing without delay.
Non-obvious defects must also be reported in writing immediately, at the latest within 14 days of detection. If defects are not reported within the stipulated periods, any warranty claims against Jankowski are excluded.
§ 10 Warranty
With regard to the type, scope and quality of the goods, only the information given in the order confirmation is decisive. Other statements by Jankowski or their assistants are irrelevant to the agreed quality. If there is a defect in the subject matter of the contract, which was already present at the time of the transfer of risk and which was reported in due form and time (cf. § 9 of these General Terms and Conditions), Jankowski will, at its own discretion, remedy the defect or make a replacement delivery within 12 months after the transfer of risk. In the event of a replacement delivery, the defective, exchanged part must be returned to Jankowski.
In the case of used contractual objects, any liability for defects is excluded. Only the statute of limitations for liability for defects that can lead to injury to life, limb or health of persons does not come into effect before the end of 24 months from the time of delivery. Jankowski is not liable for slightly negligent breaches of duty, provided these do not relate to essential contractual obligations or guarantees or damage resulting from injury to life, limb or health or claims under the Product Liability Act. If Jankowski is also liable for slight negligence, the amount of liability is limited to typical, foreseeable damage. Insofar as Jankowski’s liability is excluded or limited, this also applies to the liability of legal representatives, employees and vicarious agents of Jankowski. The customer must give Jankowski the necessary time and opportunity to plan and carry out rectification or replacement delivery unhindered in the normal course of business and between 6 a.m. and 6 p.m. on workdays. Instead of rectification or replacement delivery, the customer can assert the statutory rights (withdrawal, reduction, reimbursement of expenses or damages) if Jankowski was unable to remedy the defect complained of despite two rectifications or replacement delivery or if the rectification or replacement delivery was refused or unreasonably delayed or was unreasonable and if the additional requirements of §§ 281 Para. 2 BGB or § 323 Para. 2 BGB are met.
§ 11 Special features of contract manufacturing of parts
If customers commission Jankowski with the contract manufacturing of parts, the following special features also apply: If customers request an offer from Jankowski and only submit a 2D drawing, Jankowski cannot create a binding calculation. In this case, prices are only non-binding. A binding price calculation requires the prior delivery of a 3D CAD volume model by the customer. The customer has to bear the corresponding costs himself, even if an offer is not prepared or a production contract is not concluded. If the customer provides both a 2D drawing and a 3D CAD volume model, the customer has to make a binding decision as to whether the contract manufacturing should ultimately be based on the 3D CAD volume model or whether after the start of production on Deviations in dimensions from the information in the 2D drawing that are determined for the first workpiece are to be caused by modification of the CAD program or other changes in the production process. The customer has to pay the additional expenses required as a result at the usual local prices.
If, in this context, parts that have already been manufactured no longer make sense for further processing (“precious scrap”), the customer has to bear the costs for the manufacture of the first workpiece and the adaptation of the production process to the dimensions contained in the 2D drawing, in addition to the costs at local prices to pay. Jankowski is entitled to dispose of the non-dimensionally accurate production rejects or to recycle them at its own risk.
Jankowski is not liable for damage of any kind to machines/equipment in which contract-manufactured parts are installed or used, nor for production losses or consequential damage of any kind, unless they were caused intentionally or through gross negligence.
§ 12 Retention of title
1. Jankowski retains ownership of the delivered items or purchased items (hereinafter referred to as “reserved goods”) until all claims arising from the business relationship, including all claims from follow-up orders, repeat orders, spare parts orders, have been paid in full. If the customer behaves in breach of contract, in particular default in payment, Jankowski is entitled, but not obliged, to take back the reserved goods. The withdrawal by Jankowski constitutes a withdrawal from the contract. After taking back the goods subject to retention of title, Jankowski is authorized to sell them;
2. The customer is obliged to treat the goods subject to retention of title with care, in particular to insure them adequately at replacement value against fire, water and theft at his own expense. If maintenance and inspection work is required, the customer must carry this out in good time at his own expense.
3. In the event of attachments or other interventions by third parties, the customer must notify Jankowski immediately in writing so that legal action can be taken in accordance with § 771 ZPO.
4. The customer is entitled to resell the reserved goods in the ordinary course of business. The customer hereby assigns to Jankowski all claims accruing to him from the resale against his customers or third parties in the amount of the final invoice amount including VAT. This also applies in cases where the customer has resold the reserved goods after processing/conversion. Even after the assignment, the customer remains authorized to collect his claim as long as the customer meets his payment obligations to Jankowski, does not default on payment, does not stop payments or has filed an application for the opening of insolvency proceedings. In these cases, Jankowski can demand that the customer discloses the assigned claims and their debtors, provides all the information required for collection, hands over the relevant documents and notifies the debtors (third parties) of the assignment.
5. The processing or transformation of the reserved goods by the customer is always carried out for Jankowski. If the reserved goods are processed or transformed with other items, Jankowski acquires co-ownership of the new item in the ratio of the value of the reserved goods including VAT to the other processed items. The same applies to the item created through processing as to the reserved item.
6. Jankowski undertakes to release the securities at the customer’s request insofar as the realizable value of the securities exceeds the claims to be secured by more than 10%.
§ 13 Place of performance, place of jurisdiction
The place of fulfillment and payment for the delivery is in 56593 Horhausen, Industriepark 22, unless otherwise agreed.
For any legal disputes between Jankowski and customers – unless they are consumers – the exclusive place of jurisdiction is the court with subject matter jurisdiction for Jankowski’s registered office in 56593 Horhausen.
This also applies to legal disputes with customers who do not have a general place of jurisdiction in Germany. Statutory exclusive jurisdiction remains unaffected.
§ 14 Severability Clause
If one or more provisions of these general terms and conditions are or become invalid or unenforceable, this does not affect the validity of the remaining terms and conditions. The ineffective or unenforceable provision is to be replaced by one that comes closest to what the parties intended with the original provision in economic and legal terms. This also applies to any contractual loopholes.
Version 1/2017