Art. 1 Terms of application

(1) For all sales, deliveries, services and offers of Jecture GmbH (hereinafter referred to as “Jecture”), the following General Terms and Conditions of Sale (Terms and Conditions of Sale) shall apply exclusively. The Terms and Conditions of Sale form the basis of the contractual relationship with the business partner (Partner) and become an integral part of all verbal and written orders or order confirmations for the entire duration of the business relationship.

(2) These Terms and Conditions of Sale apply exclusively. Any general terms and conditions of the Partner that deviate from these Terms and Conditions of Sale or the law are expressly rejected. They shall not become part of the contract even if Jecture should accept or execute orders in the knowledge of these conflicting or deviating terms and conditions of the Customer.

Art. 2 Offers, orders and conclusion of contract

(1) All offers of Jecture are subject to change and non-binding, unless they are expressly marked as binding or contain a specific acceptance period. Jecture may accept orders or commissions within (14) days of receipt. An order or an offer leads to an order if it is accepted in writing by Jecture.

(2) The legal relationship between Jecture and the Partner shall be governed solely by the purchase contract concluded in writing, including these Terms and Conditions of Sale. This fully reflects all agreements between Jecture and the Partner regarding the subject matter of the contract. Verbal commitments prior to the conclusion of a purchase contract are legally non-binding and verbal agreements are replaced by the written contract, unless expressly agreed otherwise between Jecture and the Partner.

(3) Additions and amendments to the agreements made between Jecture and the Partner, including these Terms and Conditions of Sale, must be made in writing to be effective. With the exception of the management or authorized signatories, the employees of Jecture are not entitled to make verbal agreements deviating from the written agreement. The management or authorized signatories are entitled to make exceptions to the above and to grant individual employees corresponding powers. Tele-communicative transmission, in particular by e-mail, is sufficient to comply with the written form.

(4) Information provided by Jecture on the subject matter of the delivery or service (e.g. weights, dimensions, utility values, load capacity, tolerances and technical data) as well as representations of the same (e.g. drawings and illustrations) are only approximate, unless the usability for the contractually intended purpose requires exact conformity. They are not guaranteed characteristics, but descriptions or identifications of the delivery or service. Customary deviations and deviations resulting from legal regulations or technical improvements, as well as the replacement of components by equivalent parts are permissible, provided that they do not impair the usability for the contractually intended purpose.

(5) Jecture reserves the ownership, ownership or copyright to all offers and cost estimates submitted by it as well as drawings, illustrations, calculations, brochures, catalogs, models, tools and other documents and aids made available to the Partner. The Partner may not make these objects accessible to third parties, disclose them, use them itself or through third parties or reproduce them without the express consent of Jecture. At the request of Jecture, the Partner shall return these items in full and destroy any copies made, unless the retention is justified by law and/or for important reasons. Excluded from this is the storage of electronically provided data for the purpose of usual data backup.

(6) If an order from Jecture is not accepted by the Partner within three (3) days of receipt, Jecture shall be entitled to revoke the order. Framework orders shall become binding at the latest if the Partner does not object within one week of receipt. Jecture is entitled to request changes to the delivery item in design and execution within the scope of reasonableness for the Partner. In doing so, the effects, in particular with regard to additional and reduced costs as well as delivery dates, shall be regulated appropriately.

(7) In the case of call-off orders, Jecture reserves the right to procure the required material immediately and to produce the expected sales quantity immediately. Change requests of the Partner can therefore generally no longer be considered. After acceptance of the first partial delivery, the Partner shall bear all additional costs incurred as a result of a change or adaptation of the product. In the event of change requests by the Business Partner after submission of a call-off order, Jecture may either comply with the changes or refuse further delivery.

(8) Legally binding obligations can only be entered into by the management or authorized signatories. However, other persons may be or become authorized in individual cases by the aforementioned authorized persons to accept customer orders by handing over a written order confirmation.

Art. 3 Delivery and reservation of delivery

(1) Deliveries to the Partners shall be made ex works (EXW) (in accordance with Incoterms 2020).

(2) Deadlines and dates for deliveries and services promised by Jecture are always only approximate, unless a fixed deadline or a fixed date has been expressly promised or agreed. If, in exceptional cases, shipment has been agreed, delivery periods and delivery dates refer to the time of handover to the forwarding agent, carrier or other third party commissioned with the transportation, unless expressly stated otherwise by Jecture.

(3) Jecture may – without prejudice to its other rights arising from default of the Partner – demand from the Partner an extension of delivery and performance deadlines or a postponement of delivery and performance dates by the period in which the Partner does not fulfill its contractual obligations towards Jecture.

(4) Unless otherwise agreed or regulated in these terms and conditions of sale, partial deliveries as well as over- or under-deliveries are permissible.

(5) The delivery by Jecture is subject to timely and complete self-delivery. The Partner shall be informed immediately if a complete or timely self-delivery does not take place. If self-delivery does not take place for reasons for which Jecture is not responsible, the order shall be deemed not concluded. A procurement risk assumed by Jecture does not exist – as far as legally permissible.

(6) Jecture reserves the right to deliver only against cash on delivery, advance payment or after receipt of a bank-confirmed check, in particular if

(a) Jecture is unable, through no fault of its own, to cover the insurance risk resulting from this order(s) in whole or in part with an insurer of our choice; or

(b) the financial situation of the Partner deteriorates before the order(s) is (are) executed.

Prepayment invoices must be paid no later than 14 days after the invoice date. The goods shall only be delivered after the full invoice amount has been credited to Jecture’s account. After expiry of the 14-day payment period, Jecture reserves the right to charge a cancellation fee of 40% of the order value in the event of cancellation, before manufacturing has started.

Art. 4 Place of fulfillment, shipping, packaging, transfer of risk, acceptance

(1) The place of fulfillment for all obligations arising from the contractual relationship is the registered office of Jecture, unless otherwise agreed. The mode of shipment and the packaging are subject to the dutiful discretion of Jecture in compliance with the regulation in Art. 3 (1).

(2) The risk shall pass to the Partner at the latest with the handover of the delivery item (whereby the start of the loading process is decisive) to the forwarding agent, carrier or other third party designated to carry out the shipment, insofar as the shipment of the goods has been agreed by way of exception and Jecture has not taken over transportation or installation. If the shipment or the handover is delayed due to a circumstance whose cause lies with the Partner, the risk shall pass to the Partner from the day on which the delivery item is ready for shipment and Jecture has notified the Partner of this.

(3) Storage costs after the transfer of risk shall be borne by the Partner. In the case of Jecture storage, the storage costs shall amount to 0.25% of the invoice amount of the delivery items to be stored per expired week. The assertion and proof of further or lower storage costs shall remain reserved.

(4) The shipment shall only be insured by Jecture against theft, breakage, transport, fire and water damage or other insurable risks at the express request of the Partner and at its expense.

(5) Insofar as an acceptance has to take place, the delivery item shall be deemed accepted when

– the delivery is completed;

– Jecture has notified the Partner of this with reference to the fiction of acceptance in accordance with this Art. 4 (5) and has requested acceptance;

–  7 working days have passed since delivery or the Partner has started to use the delivery item and in this case 10 working days have passed since delivery; and

– the Partner has failed to accept within this period for a reason other than a defect notified to Jecture, which makes the use of the delivery item impossible or significantly impairs it.

(6) If the Partner refuses to accept the goods without a justified reason or cancels the order without being entitled to do so, payment of the full purchase price before delivery of the ordered goods may be insisted upon, insofar as legally permissible. Art. 3 (5) a.E. applies accordingly.

Art. 5 Delivery periods

(1) Insofar as delivery dates are stated, these are non-binding, unless they have been confirmed in writing by Jecture, for example in the order confirmation.

(2) Fixed-date transactions are generally not accepted by Jecture. Deliveries before the expiry of the delivery period do not entitle the Partner to refuse acceptance.

(3) In the event that the delivery period is exceeded, a grace period of three weeks shall automatically commence. In the event of a delay for which Jecture is responsible, the Partner shall only be entitled to assert further rights if the grace period has expired fruitlessly. A claim for damages is limited to possible additional costs for the ordered product (covering purchase). The Partner is obliged to obtain at least two comparative offers. Jecture is also entitled to carry out a covering purchase itself within a reasonable period of time. Any further claims for damages, in particular compensation for financial losses and any third-party damages, are excluded. Excluded from this are, unless intentional or grossly negligent actions can be proven.

(4) In the event of force majeure, the provisions of Art. 13 shall apply.

Art. 6 Liability for defects, guarantees

(1) The assumption of guarantees is generally excluded, unless an express written agreement has been concluded with the partner.

(2) The prerequisite for any warranty rights of the Partner is the proper fulfillment of all inspection and complaint obligations owed according to § 377 HGB. The delivered items must be carefully inspected immediately after delivery to the Partner or to the third party designated by the Partner. They shall be deemed approved by the Partner with regard to obvious defects or other defects that would have been recognizable during an immediate, careful inspection, if Jecture does not receive a written notice of defects within seven working days after delivery. With regard to other defects, the delivery items shall be deemed approved by the Partner if the notice of defects is not received by Jecture within seven working days of the time at which the defect became apparent. If the defect was already apparent at an earlier point in time during normal use, this earlier point in time shall, however, be decisive for the start of the period of notice. At the request of Jecture, a rejected delivery item shall be returned to Jecture carriage paid. In the event of a justified notice of defects, Jecture shall reimburse the costs of the most favorable shipping route; this shall not apply if the costs increase because the delivery item is located at a place other than the place of intended use. Defects that are reported late will not be considered and are excluded from the warranty. Complaints made to field staff or transporters or other third parties do not constitute complaints in due form and time.

(3) The return of the goods to Jecture required in the event of a defect notified in due time may only be made after prior written notification. No acceptance obligation applies to returns made without prior written notification. In this case, the Partner shall bear the costs of the return shipment. Replacement deliveries or credit notes for reasons of goodwill always require a special agreement.

(4) In the event that a rectification or replacement delivery is made on the basis of a justified complaint, the provisions on the delivery period shall apply accordingly.

(5) The existence of a defect identified as such and notified by an effective notice of defect shall give rise to the following rights in respect of defects, to the extent permitted by law:

(a) In the event of defectiveness, the Partner shall initially have the right to demand rectification or replacement delivery from the other party;

(b) If the first attempt at subsequent performance fails, Jecture shall have the right to make another attempt at subsequent performance;

(c) Only if the repeated supplementary performance fails, the Partner shall have the right to withdraw from the contract or to reduce the purchase price.

(d) The Partner may only claim damages or compensation for futile expenses in cases of grossly negligent or intentional breach of the obligation to deliver defect-free goods. He must prove the reason for and the amount of the damage incurred. The same applies to futile expenses.

(6) The warranty shall not apply if the Partner modifies the delivery item or has it modified by a third party without the consent of Jecture and the rectification of defects is made impossible or unreasonably difficult as a result. In any case, the Partner shall bear the additional costs of remedying the defect resulting from the modification.

(7) As far as legally permissible, the warranty is also excluded if the defect, on which the Partner relies, is based on the quality of a raw product or a semi-finished part, which Jecture has received from third parties for processing or treatment. 

(8) The Partner is obliged to check the suitability of the goods for a specific purpose himself, Jecture is – as far as legally permissible – not obliged to check the suitability for use.

(9) If the Partner is solely or predominantly responsible for circumstances that would entitle him to withdraw from the contract, or if the circumstance entitling him to withdraw from the contract occurred during the Partner’s default of acceptance, the withdrawal is excluded.

(10) The warranty period is one year from delivery. The Partner shall bear the burden of proof for the existence of the defect before the transfer of risk. Any delivery of used items agreed between the parties in individual cases shall be made to the exclusion of any warranty for material defects.

Art. 7 Liability for breaches of duty

(1) The liability of Jecture for damages, regardless of the legal grounds, in particular due to impossibility, delay, defective or incorrect delivery, breach of contract, breach of obligations during contract negotiations and unauthorized action, is limited in accordance with this Art. 7.

(2) Liability for property damage and financial loss incurred by the partner is fundamentally limited to cases of slight negligence. Should liability be given hereafter, the amount of liability is limited to the amount of the delivery value. Jecture shall not be liable for any further risks.

(3) Jecture shall not be liable in the event of simple negligence of its bodies, legal representatives, employees or other vicarious agents, unless it is a breach of essential contractual obligations. Essential contractual obligations are the obligation to deliver on time, its freedom from defects of title and such material defects that impair its functionality or suitability for use more than insignificantly, as well as consulting, protection and care obligations that are intended to enable the partner to use the delivery item in accordance with the contract or to protect the life or limb of the partner’s personnel or to protect the partner’s property from considerable damage.

(4) Insofar as Jecture is liable for damages in accordance with Art. 7 (2), this liability shall be limited to damages which Jecture foresaw as a possible consequence of a breach of contract upon conclusion of the contract or which it should have foreseen if it had exercised due diligence. Indirect damages and consequential damages, which are the result of defects of the delivery item, are also only eligible for compensation if such damages are typically to be expected when the delivery item is used as intended. The above provisions of this para. 4 shall not apply in the event of intentional or grossly negligent conduct by members of the Seller’s executive bodies or senior executives.

(5) The above exclusions and limitations of liability shall apply to the same extent in favor of the organs, legal representatives, employees and other vicarious agents of Jecture.

(6) The limitations of this Art. 7 do not apply to the liability of Jecture for intentional behavior, for guaranteed characteristics, for injury to life, body or health or under the Product Liability Act.

Art. 8 Terms of payment

(1) Invoices of Jecture are due 14 days after the invoice date net cash, unless otherwise contractually agreed.

In the case of bank transfers, the date of receipt of payment shall be the date on which the amount due is credited to our account. In the case of payments by check, the date of receipt of payment shall be the date on which the check is credited to our account.

(2) Discount deduction, if agreed, is not permitted if the customer is in arrears with an older claim from another delivery of goods.

(3) In the event that a partial invoice of the partner is overdue, the entire invoice amount shall automatically become due. If the Partner is in default, Jecture shall be entitled to claim default interest in the amount of 9% above the base interest rate.

(4) Offsetting by the Partner is only permitted if its claim has been legally established or recognized by Jecture in writing.

(5) Payments shall be made by bank transfer to the bank account specified in the invoice.

(6) If Jecture agrees to installment payments, the entire outstanding invoice amount shall be due immediately in one sum in the event of non-payment or late payment of a single installment.

(7) The prices are ex work, plus the respective statutory value added tax and excluding the costs for packaging, unless expressly agreed otherwise with the Partner.

Art. 9 Retention of title

(1) All delivered goods shall remain the property of Jecture until all invoices for deliveries and services, including those that are not yet due or result from contracts concluded at the same time or later, have been paid in full (reserved goods). This also applies if some of our entire receivables are placed in a current account and this has been confirmed.

In the event of a breach of contract by the Partner, Jecture shall be entitled to take back the reserved goods after setting a reasonable deadline. A reclaim of the goods is not to be regarded as a withdrawal from the contract if this has not been expressly declared in writing, with the exception of the seizure of the reserved goods. Reclaimed goods may be resold immediately. The sales proceeds shall be offset against the partner’s liabilities, less reasonable costs for the measure.

(2) If third parties wish to gain access to the delivered goods, the Partner is obliged to point out the above retention of title and to inform Jecture immediately. A disposal of the goods subject to retention of title, for example by pledging, transfer by way of security, donation or transfer for use by the Partner is not permitted under any circumstances.

(3) The Partner shall be entitled to process and sell the goods subject to retention of title in the ordinary course of business as long as it is not in default. The Customer hereby assigns the claims arising from the resale or other legal grounds (insurance, unauthorized action) with regard to the reserved goods to Jecture in full by way of security. Jecture revocably authorizes the Partner to collect the assigned claims for its account in its own name. The direct debit authorization expires (i) if the Partner does not properly meet his payment obligations, (ii) if he gets into payment difficulties, (iii) if enforcement measures are taken against him or (iv) if judicial insolvency proceedings are opened against his assets or their opening is rejected due to lack of assets.

(4) If the Partner’s claim from the resale has been included in a current account, the Partner hereby also assigns his claim from the current account against his customer to Jecture. The assignment is made in the amount that the Partner has charged for the resold reserved goods.

(5) In the event of a seizure of the goods at the Partner, the Partner shall inform Jecture by sending a copy of the enforcement protocol and an affidavit that the seized goods are the goods subject to retention of title.

(6) Jecture shall be obliged to release securities as well as the retention of title to the Partner upon its request insofar as the value of the securities including the retention of title exceeds the value of the outstanding claims by more than 20%. The choice of the securities to be released is subject to the discretion of Jecture.

(7) The assertion of the rights arising from the above retention of title does not release the Partner from its contractual obligations. The value of the goods at the time of repossession shall only be credited against the existing claim we have against the Partner.

Art. 10 Protection and property rights

(1) Unless otherwise agreed, Jecture shall be entitled to the sole ownership or copyright to tools, molds, equipment, plans, drawings, samples and other documents.

(2) Insofar as molds, tools, samples, plants or test parts for a specific product are procured or manufactured by Jecture, these are also the sole property of Jecture. Remuneration claims of the Partner in this respect are settled within the scope of the agreed remuneration.

(3) If samples, components, semi-finished or finished products conceived by Jecture are eligible for protection, the right to register, defend and maintain such property rights shall belong exclusively to Jecture.

(4) If products that are the subject of industrial property rights are the subject of contracts with partners, the partner acquires a manufacturing, distribution and use license if he is entitled to manufacture and distribute them. If the subject matter of the contract is solely the right of use and distribution, the license shall apply accordingly. License fees are compensated with the contractually agreed product prices, unless otherwise agreed. Unless otherwise agreed, the licenses are non-exclusive, non-sublicensable and, in the case of manufacturing licenses, limited to the term of the contract.

(5) If products are delivered according to plans, drawings, samples etc. provided by the Partner, the Partner shall guarantee that the property rights of third parties are not infringed. If the production or delivery is prohibited by third parties due to possible infringements of property rights, Jecture shall be entitled to withdraw from the contract. The Partner shall indemnify Jecture from all claims of third parties resulting from this as well as any costs incurred.

(6) The Partner shall grant Jecture the manufacturing and distribution licenses to its property rights necessary for the fulfilment of the contract free of charge.

Art. 11 Confidentiality

(1) Confidential information and secrets of Jecture (hereinafter referred to as “disclosing party”), namely business and trade secrets, which have become known to the Partner in connection with the contractual relationship, shall be kept confidential by the Partner.

(2) “Confidential information” is, irrespective of whether it is designated as “confidential” or not, all financial, technical, economic, legal, tax, business, personnel or management-related or other information (including trade secrets, records and know-how) which relates to the disclosing party or a company affiliated with it (within the meaning of Sections 15 et seq. of the German Stock Corporation Act) and which is made available to the partner directly or indirectly by the disclosing party or a company affiliated with it or which comes to its knowledge in any other way. Whether and on which medium the Confidential Information is embodied is irrelevant; in particular, oral information is also included. It is also irrelevant whether documents or other media were created by the disclosing party, the other party or third parties, provided they contain, reproduce or refer to Confidential Information. Confidential information may also be information and documents which in individual cases do not meet the requirements of a trade secret within the meaning of the German Trade Secrets Protection Act (GeschGehG).

(3) The Partner is prohibited from utilizing, making available to third parties or otherwise using Confidential Information for any purpose other than that intended for the performance of the contract without the written consent of the disclosing party.

(4) The Partner is prohibited from obtaining Confidential Information by observing, investigating, disassembling or testing a product or object of Jecture that has not been made publicly available (so-called reverse engineering) or attempting to do so, unless this is necessary for the fulfillment of its contractual obligations.

(5) The duty of confidentiality shall not apply to Confidential Information,

(a) which was already known to the Partner prior to the conclusion of this Agreement;

(b) which had already been published by the disclosing party at the time of disclosure, without this resulting from a breach of confidentiality by the partner;

(c) which the disclosing party has expressly authorized in writing for disclosure

(d) which the Partner has lawfully obtained from other sources without any confidentiality restrictions, provided that the disclosure and use of such Confidential Information does not violate any contractual agreements, legal provisions or official orders;

(e) which the Partner itself has developed without access to the Confidential Information of the disclosing party; or

(f) which must be disclosed due to statutory information, notification and/or publication obligations or official orders. To the extent permissible, the party obliged to do so shall inform the other party of this as early as possible and support it to the best of its ability in taking action against the obligation to disclose.

(6) The Partner undertakes to impose a duty of confidentiality on all employees and/or third parties who have access to the aforementioned business transactions. The respective party shall inform the disclosing party if it becomes aware that Confidential Information has been disclosed in violation of this Art. 11.

Art. 12 Right of withdrawal

Jecture is granted a right of withdrawal in the following circumstances:

(a) if, contrary to the assumption prior to the conclusion of the contract, it turns out that the Partner is not creditworthy;

(b) if it turns out that the Partner has made incorrect statements with regard to his creditworthiness and these statements are of considerable importance;

(c) if the goods subject to retention of title are sold other than in the ordinary course of business of the partner, in particular by transfer by way of security or pledging. Exceptions to this shall only apply if we have declared our consent to the sale in writing;

(d) if the partner objects to the inclusion of new or amended terms and conditions of sale; or

(e) in the event of force majeure in accordance with Art. 13 below.

Art. 13 Force majeure

(1) Jecture shall not be liable for impossibility of delivery or for delays in delivery insofar as these are caused by force majeure or other events not foreseeable at the time of conclusion of the contract (for example, but not limited to, operational disruptions of all kinds, difficulties in the procurement of materials or energy, transport delays, strikes, lawful lockouts, shortage of labor, energy or raw materials, difficulties in obtaining necessary official permits, pandemics or epidemics, official measures or the lack of, incorrect or untimely delivery by suppliers despite a congruent hedging transaction concluded by the Seller) for which Jecture is not responsible.

(2) If such events make the delivery or service significantly more difficult or impossible for Jecture and the hindrance is not only of temporary duration, Jecture is entitled to withdraw from the contract. In case of hindrances of temporary duration, the delivery or service deadlines shall be extended or the delivery or service dates shall be postponed by the period of the hindrance plus an appropriate start-up period. If the Partner cannot reasonably be expected to accept the delivery or service as a result of the delay, it may withdraw from the contract by immediate written declaration to Jecture.

Art.14 Miscellaneous

(1) The place of performance and fulfillment for all contractual obligations of the parties is, as far as legally possible, Freiensteinau/Germany.

(2) This contract shall be governed by the laws of the Federal Republic of Germany (excluding the Convention on Contracts for the International Sale of Goods).

(3) The place of jurisdiction for all disputes arising from this contractual relationship is the registered office of Jecture. Jecture is also entitled to sue the Partner at its registered office.

(4) Should any provision of these Terms and Conditions of Sale be or become invalid, the remaining provisions shall remain unaffected. In this case, the parties are obliged to replace the invalid provision with a provision that comes closest to the invalid provision in a legally permissible manner.