AVV (GTC – General terms and conditions)

§ 1 Scope

(1) These General Terms and Conditions of Sale (hereinafter: GTC) apply to all contracts concluded between us, jopesch GmbH, Holthoffstr. 122, 45659 Recklinghausen, Germany, authorized representatives: Jobin Schön, Dr. Peter Schön, and you as our customer. The offer in our online shop (shop.jopesch.de) and through our other offers outside the online shop , in particular on our website (www.jopesch.de), is aimed exclusively at entrepreneurs within the meaning of § 14 para 1 BGB, who act in the exercise of their commercial or independent professional activity when concluding the contract .

(2) All agreements made between you and us in connection with the contract result in particular from these terms and conditions and our written order confirmation.

(3) The version of the General Terms and Conditions valid at the time of conclusion of the contract shall apply. The General Terms and Conditions shall also apply to all future business relations, even if they are not expressly agreed again.

(4) We do not accept any deviating terms and conditions of the customer unless this is expressly declared in writing. This shall also apply if we do not expressly object to the inclusion.

§ 2 Conclusion of contract

(1) The presentation and advertising of items in our online shop does not constitute a binding offer to conclude a purchase contract.

(2) By submitting an order via the online shop by clicking the button “submit order”, you place a legally binding order. You are bound to the order for a period of four (4) weeks after placing the order.

(3) We will confirm receipt of your order placed via our online shop immediately by e-mail. Such an e-mail does not constitute a binding acceptance of the order unless, in addition to the confirmation of receipt, the acceptance is declared at the same time.

(4) Outside our online shop or after sending the inquiry form via our website, we will send you an offer which is valid for four (4) weeks from the date of the offer, unless the offer contains a different binding period or it is expressly marked as “indicative”, “subject to change” or “without obligation”. An offer on our part is merely the basis for the submission of a binding contractual declaration (application) on your part.

(5) A contract shall only be concluded when we accept your order/assignment by means of a declaration of acceptance or by delivering the ordered items. With the order confirmation or in a separate e-mail, but at the latest upon delivery of the goods, the contract text consisting of the order, GTC and order confirmation will be sent to you by us on a durable data medium.

(6) If the delivery of the goods ordered by you is not possible, for example because the corresponding goods are not in stock, we refrain from a declaration of acceptance. In this case, a contract is not concluded. We will inform you of this immediately and refund any consideration already received without delay.

(7) We have the right to withdraw from the contract if the delivery of the goods becomes impossible due to the fact that suppliers and/or subcontractors cannot deliver goods or parts of the goods and a replacement procurement is only possible for us with disproportionate effort and we are not responsible for the impossibility, provided that these circumstances occurred after the conclusion of the contract, were not foreseeable at the time of the conclusion of the contract and it can be proven that the procurement of similar goods was attempted in a reasonable manner. The customer shall be notified immediately of such a case.

§ 3 Terms of delivery and reservation of advance payment

(1) We shall be entitled to make partial deliveries insofar as this is reasonable for you.

(2) The delivery period is approximately 5 working days, unless otherwise agreed. It begins – subject to the provision in paragraph 3 – with the conclusion of the contract.

(3) The delivery of freight forwarded goods shall be free kerbside, unless otherwise agreed in the individual case.

(4) In the case of orders from customers with their place of residence or business abroad or in the case of justified indications of a risk of non-payment, we reserve the right to deliver only after receipt of the purchase price plus shipping costs (advance payment reservation). If we make use of the advance payment reservation, we will inform you immediately. In this case, the delivery period begins with payment of the purchase price plus VAT and shipping costs.

(5) The delivery dates agreed in the contract shall apply. These are generally non-binding unless an expressly binding delivery date has been specified.

(6) The risk of accidental loss shall pass to the customer when the object of sale has been handed over to the carrier or has left our factory premises for shipment, even if partial deliveries are made or we have assumed other services, for example the shipping costs or delivery and installation.

§ 4 Prices and shipping costs

(1) All price quotations in our online shop and our offers are net prices plus the applicable statutory value added tax and costs for packaging and shipping, customs duties, transport insurance, fees and other charges, if these are actually incurred.

(2) The shipping costs are indicated in our price quotations in our online shop or our offers. The price plus VAT and applicable shipping costs is also displayed in the order mask before you submit the order.

(3) If we fulfil your order by partial deliveries, you will only incur shipping costs for the first partial delivery. If the partial deliveries are made at your request, we will charge shipping costs for each partial delivery.

(4) Additional work shall be invoiced to the customer at the terms agreed in the contract. If nothing has been agreed, our usual list prices shall apply.

§ 5 Terms of payment and set-off and right of retention

(1) The purchase price plus any applicable value added tax and the shipping costs shall be paid in advance within two (2) weeks of receipt of our invoice at the latest, unless otherwise agreed.

(2) You may pay the purchase price plus any applicable value added tax and the shipping costs at your option only using the payment options offered by us. Payments shall be deemed to have been made on the day on which we actually receive the purchase price, or the purchase price is received in the bank account or account of the respective payment provider specified by us in the purchase contract.

(3) You are not entitled to offset against our claims unless your counterclaims are legally established or undisputed. You are also entitled to offset against our claims if you assert notices of defects or counterclaims from the same purchase contract.

(4) As the purchaser, you may only exercise a right of retention if your counterclaim arises from the same purchase contract.

§ 6 Retention of title

(1) The delivered goods remain our property until full payment of the purchase price. In the ordinary course of business, customers are entitled to sell the products to third parties. In this case, customers shall assign to us the purchase price claims from a resale up to the amount of the respective gross sales price invoiced by us.

(2) The Customer shall be obliged to treat the Retained Goods with care, to insure them adequately at its own expense against damage by fire, water and theft at replacement value and to carry out maintenance and inspection work on the Retained Goods in good time or have such work carried out at its own expense.

(3) If we withdraw from the contract in the event of a breach of contract on the part of the customer – in particular default of payment – we shall be entitled to demand the return of the goods subject to retention of title or to realize the replacement securities.

(4) The customer is obligated to notify us immediately in writing in the event of seizures and other interventions affecting our property rights and to indemnify us from costs incurred due to the securing/realization of their rights.

§ 7 Warranty and exchange of goods

(1) We are liable for material defects or defects of title of delivered items in accordance with the applicable statutory provisions. Towards you as an entrepreneur the legal warranty period is 12 months for new goods and refurbished goods, 6 months for used goods. It begins with the delivery of the goods.

(2) You are obliged to inspect the purchased goods and to notify us immediately of any obvious defects. This also applies to hidden defects discovered later. If you violate your obligation to inspect and give notice of defects, the assertion of warranty claims is excluded.

(3) Any seller’s warranties given by us for specific items or manufacturer’s warranties granted by the manufacturers of specific items shall be in addition to any claims based on material defects or defects of title within the meaning of para. 1. Details of the scope of such warranties shall be set out in the warranty conditions which may be enclosed with the items.

§ 8 Exchange service

(1) We offer our customers the possibility to send a defective device to us and receive a functional device against a cost discount.

(2) When exchanging goods for defective goods of the customer, the customer is obliged to send the defective goods to us within 8 days at his expense. If the deadline is not met or irreparable goods are sent, the customer is obliged to pay the difference between the actual value of the defective item and our paid/invoiced price if he is responsible for this.

(3) The customer shall bear the transport risk.

§ 9 Liability

(1) We shall be liable to you in all cases of contractual and non-contractual liability in the event of intent and gross negligence in accordance with the statutory provisions for damages or reimbursement of futile expenses.

(2) In other cases, we shall be liable – unless otherwise provided in para. 3 – only in the event of a breach of a contractual obligation, the fulfilment of which is a prerequisite for the proper performance of the contract and on the observance of which you as the customer may regularly rely (so-called cardinal obligation), limited to compensation for the foreseeable and typical damage. In all other cases, our liability is excluded subject to the provision in para. 3.

(3) Our liability for damages arising from injury to life, body or health and under the Product Liability Act shall remain unaffected by the above limitations and exclusions of liability.

(4) The restrictions of paragraphs 1 and 2 shall also apply in favour of the legal representatives and our vicarious agents if claims are asserted directly against them.

§ 10 Additional conditions for repair work

(1) We offer our customers a repair service, for the repair of products of the customer. We inform the customer in advance of the expected repair costs, insofar as this is possible for us. The preparation of an offer / estimate with binding price, we cannot guarantee. The cost estimate includes the scope of services specified in the respective offer and is only binding if this is expressly assured in writing. Deadline specifications of the customer shall only become binding if they have been confirmed by us in writing and expressly recognized as binding.

(2) In the case of a repair order, the customer must complete the application form sent by us in advance or made available on the website completely and truthfully to the best of his knowledge and return it to us. The customer is obliged to provide an accurate and comprehensive description of all defects or malfunctions of the submitted assembly(s) in writing via the application form and to support us in the error analysis and elimination of defects to the best of his ability.

(3) If there are technical or manufacturer-specific peculiarities, the customer shall point these out and inform us in good time about the necessity of certain safety checks or prerequisites. The customer shall inform us of all relevant interfaces (hardware and software) which must be observed in order to provide the services. This applies in particular if our service requires the provision of programming services on data processing systems.

(4) The customer is obliged to check and save all settings, parameter sets and data necessary for the proper operation and functionality of the system. The customer must check in advance whether these are correctly set for the use intended by the customer and additionally secured externally. We shall not be liable for the loss of data, parameters or settings, either during repair or in transit.

(5) If, after sending in and inspecting an item for repair, we determine that it is not repairable or that repair is uneconomical, we shall inform the customer immediately. At the customer’s option, the non-repairable item may be returned to the customer at our expense or disposed of professionally free of charge, unless expressly agreed otherwise prior to sending in the item to be repaired.

(6) jopesch shall be entitled to hand over the object to be repaired to a partner workshop or a subcontractor for repair if it is not possible for jopesch to carry out the repair itself.

(7) If the customer does not make a declaration regarding the placement of a repair order within four (4) weeks after dispatch of the cost estimate, we shall be entitled to charge a custody fee in the amount of EUR 25.00 net for each additional week or part thereof during which we hold the object of repair in custody.

(8) We offer a 12-month warranty on items repaired by us. However, this only applies to the components of the respective repair items that were actually repaired or replaced by us. The repaired goods shall be sealed by us. If this seal is opened by the customer, any warranty claim shall be forfeited.

(9) If, after the original defect has been repaired, further defects that were not initially apparent appear, we shall not be liable for full functionality if this defect was not included in the original repair order. We shall then be entitled to submit a new cost estimate for the further repair, which the customer may accept. (6) shall apply accordingly.

§ 11 Additional conditions for rental

(1) The day of dispatch of the rental item to the customer shall be deemed the start of the rental relationship, unless expressly agreed otherwise. In the event of delays due to late payment by the customer in the case of agreed advance payment, the rental relationship shall commence on the date agreed in the contract. The end of the rental period is the day on which the rental object is returned to us. This also applies in the event of delays, insofar as we are not responsible for these. The respective rental period results from the contract documents.

(2) In the event of default in payment by the customer, we shall be entitled to terminate the rental relationship extraordinarily after setting a reasonable unsuccessful grace period and to demand the immediate surrender of the rental object or to arrange for the collection of the rental object at the customer’s expense.

(3) The customer is obligated to inspect the rental object for defects immediately upon receipt. We must be notified immediately of any recognizable material defects. If a timely notice of defect is not given, the customer shall bear the burden of proof that the rental object was defective upon delivery.

(4) Regulations for software: The leased software or firmware may be used exclusively in
accordance with the terms and conditions of the licensee and/or licensor. The customer shall
ensure that the use is only for the contractually intended purposes. In the event of use
contrary to the terms of the contract, the customer shall indemnify us against all claims of
third parties.

(5) The rented item shall be returned to us at the expense and risk of the customer in the contractual condition and in suitable packaging (if possible in the original packaging). If the return is delayed, we shall be entitled to have the rented item collected from the customer at the customer’s expense or to demand the agreed rent as compensation for the duration of the delayed return.

(6) The customer shall be liable for any damage or wear and tear caused by non-contractual use of the rental item. The customer shall bear the costs for the replacement value. The customer shall be liable for loss or damage in transit.

§ 12 Copyrights

We have copyrights or rights of use to all images, films and texts that are published in our online shop. A use of the images, movies and texts, is not permitted without our express consent. The same applies to texts and images in our offers.

§ 13 Applicable law and place of jurisdiction

(1) The contractual language is German. The law of the Federal Republic of Germany shall apply to the exclusion of the UN Convention on Contracts for the International Sale of Goods.

(2) If you are a merchant and have your registered office in Germany at the time of the order, the exclusive place of jurisdiction shall be the registered office of the Seller. Otherwise, the applicable statutory provisions shall apply to the local and international jurisdiction.

 

© Recht 24/7 Rechtsanwaltskanzlei Schröder

Vers.1.0 from 27.04.2023