1. Formation of contract
The contractual liability of Jansen AG only arises after a written confirmation has been given by Jansen AG. Agreements differing from this written confirmation require the written approval of Jansen AG.
These general terms and conditions (“GTC”) apply for the processing of all of our goods deliveries and the provision of the related services to companies. Any conditions of the customer that contradict or deviate from our GTCs require our express written consent in order to be valid. Our GTCs shall also apply if we perform unconditional delivery to the customer whilst being aware of contradictory or deviating conditions of the customer.
2. Passing of risk and transport damage
All deliveries travel at the cost and risk of the customer. To the extent permissible by law, Jansen AG excludes all liability for damage which arises in connection with carriage of the goods, including also if the damage has been caused by independent contractors. All liability is excluded for accidents occurring on loading or unloading the products of Jansen AG, or in connection with aids, such as belts, ropes, binding wire etc.
The period for delivery begins with the date of definitive and full confirmation of order. The delivery period re-commences if Jansen AG does agree to subsequent alterations. Jansen AG accepts no liability in relation to any delay in delivery nor for any coincidence. Delays in delivery neither entitle the customer to withdraw from the contract nor to claim damages.
In these GTC, force majeure shall include any and all unforeseeable events in the service provision processes of Jansen AG, or third parties with which it has a contractual relationship, which could cause the provision of services to be disrupted (delayed, rendered impossible or more difficult, etc.). This includes acts of state with the same or similar repercussions (e.g. import and export bans, increases in duties, changes to permit practices).
Force majeure events are, in particular, natural phenomena of a certain severity (earthquakes, volcanic eruptions, water shortage, etc.), wars, acts of terrorism, boycotts, lockouts, authorised/unauthorised strikes, shortage of raw materials, epidemics and other serious incidents and their consequences in the locality of the business premises of Jansen AG or of third parties with which it has a contractual relationship. In the event of such impairment of performance, Jansen AG is (i) released from the service obligation without compensation if performance is impossible or entitled, (ii) in case of default or (iii) in the event of disproportionate impediment to the performance, to propose a new delivery date to the customer for the former and a new offer for the latter, and to withdraw from the contract in the event that these proposals are rejected. Should Jansen AG’s service provision be disrupted in any other way, the legal consequences of (iii) above shall apply.
Should similar events (force majeure, acts of state or other circumstances) cause the customer’s demand or interest to change, the customer shall still be obliged to make full payment to Jansen AG, regardless of their predictability or fault on the part of the customer. The parties are entitled to make other arrangements, to be agreed between them on an individual basis.
4. Warranty, duty to test and complain
The goods are to be inspected immediately by the customer or recipient. All warranty liabilities of Jansen AG are excluded if the inspection is not made or if defects found are not notified to Jansen AG within 8 days following receipt of the delivery. The warranty given by Jansen AG is limited to replacement free of charge or, at its own discretion, repair of parts free of charge which are acknowledged by Jansen AG to be defective. All other claims for warranty or guaranty by the customer are excluded.
5. Prohibition of set-off
The customer may not set off payments due for payment or alleged counter claims.
6. Reservation of ownership
The goods delivered remain the property of Jansen AG until full payment including all ancillary claims. It may arrange for the reservation of ownership to be registered. The customer must notify Jansen AG immediately if the goods are encumbered by a third party or an encroachment is otherwise made on the rights of ownership of Jansen AG. The proceeds received in the event of re-sale are deemed to be surrendered in advance to Jansen AG notwithstanding further claims by Jansen AG.
7. Drawings and tools
Jansen AG reserves the right of ownership and copyright in drawings, sample books, brochures and other documentation. These my not be duplicated or made accessible to third parties. Tools and similar items including for which the customer has undertaken part payment, remain in the ownership of Jansen AG. Jansen AG may dispose of the tools without giving prior notice on expiry of two years from the date of the last delivery.
All sketches, drawings, brochures or other designs, processes and ideas proposed by Jansen AG are given to the customer for examination, without obligation. It is the concern of the customer to ensure by manufacture of prototypes or by other suitable measures that these designs, processes and ideas are suitable for his purposes and that no industrial property rights, standards and regulations are infringed by their use. The liability of Jansen AG for such proposals and advice is expressly excluded.
9. Severability clause
Should individual provisions of these GTCs be or become invalid and/or ineffective, in full or in part, (e.g. due to contradictory GTCs [Battle of the forms]), the validity and/or effectiveness of the remaining provisions or parts of such provisions will remain unaffected.
Should individual provisions be invalid or ineffective, or should these GTCs be incomplete, the parties shall endeavour to reach a mutual solution before bringing the matter before a court.
10. Applicable law and place of jurisdiction
The contractual arrangements of the parties are subject to the substantial laws of Switzerland excluding the conflict-of-laws provisions and the Vienna Convention on the International Sale of Goods. The courts of justice at the domicile of Jansen AG shall be competent to decide on all disputes arising from or in connection with the contractual relationship of the parties. Jansen AG reserves the right to commence proceedings against the customer at his domicile.
11. Binding original text
Should differences arise between the German version of the GTCs and that in another language, the original German text shall prevail and apply in all cases.