General Terms and Conditions of ICEE JUNGO AG
These Terms and Conditions can be found on the Internet under www.jungo.eu.
General Terms and Conditions of Sale and Delivery
(1) The following General Terms and Conditions govern the contractual relationship between ICEE JUNGO AG, Seeblick 1, 6330 Cham, Switzerland (hereinafter “ICEE JUNGO” or “we”) and the Customer, insofar as the parties do not expressly agree otherwise. They apply to all present and future business relations. They also apply to goods manufactured by us which are purchased via a dealer or a company affiliated with us.
(2) For the adoption of our General Terms and Conditions it is sufficient to indicate in the contractual documents that they can be viewed on our website.
(3) Deviating, conflicting or supplementary general terms and conditions shall not become part of the contract even if we are aware of them, unless we have expressly agreed to them.
(4) The following order of precedence shall apply to the legally relevant documents of the contract in the event of contradictions:
- Order confirmation by ICEE JUNGO
- Offer from ICEE JUNGO
- System drawings from ICEE JUNGO
- Specifications of ICEE JUNGO
- These General Terms and Conditions of Sale and Delivery
- Order of the Customer
1. Offers and placing of orders (1) Our offers are always non-binding. In case of doubt, the contract shall only be deemed concluded with and in any event only pursuant to and with the content of our express order confirmation, if such is issued. Offers together with attachments may not be made accessible to third parties.
(2) Side agreements, amendments, supplements or cancellation of the contract require our express confirmation.
(3) Our field staff are only authorised to conclude contracts and to collect payments with an express power of attorney.
2. Brochures and catalogues, technical specifications, changes (1) The illustrations and information contained in our price lists, brochures, cost estimates and offers, in particular weight or dimension information or other technical data, as well as standards and samples referred to, merely characterise the subject matter of the contract and only represent a guarantee of properties if expressly confirmed accordingly.
(2) We reserve the right to make changes in the construction of products and they shall be deemed accepted as long as they do not impair the function and quality of the product to the detriment of the Customer.
3. Assured properties(1) Warranted characteristics refer only to the intended use specified by the Customer in the order and accepted by us. They shall only apply if the products are used in the country of use specified by the Customer in the order and accepted by us.
(2) Warranted characteristics refer only to the components of the product supplied by ourselves. We shall not be responsible for any components provided by the Customer and their suitability for the intended purpose. The Customer releases us from any obligation to examine such components for their suitability for the intended purpose.
4. Terms of delivery / prices / freight costs / insurance (1) The prices quoted are ex works (Ex Works, INCOTERMS, in the version applicable at the time of conclusion of the contract), exclusive of VAT and packaging. Other delivery conditions may be agreed by separate agreement. Unless otherwise expressly agreed, transport costs, time spent on packaging, packaging material and insurance shall be borne by the Customer. Unless otherwise agreed, the conclusion of contracts regarding transport and insurance is the responsibility of the Customer. The transfer of risk shall take place at the time the goods are made available for delivery in our factory, irrespective of the agreed delivery conditions.
(2) The packaging will not be taken back.
(3) In the case of return deliveries to us, the freight costs shall be borne by the sender unless otherwise agreed.
(4) Any assembly of products at the Customer’s premises and training are not included in the price.
5. Payment(1) Our invoices shall be deemed accepted unless expressly objected to within 10 days of the invoice date.
(2) Payments are to be made within 30 days after receipt of the invoice without deduction and discounts unless otherwise agreed. In the event of maturity or default of payment, we shall charge interest from the due date in the amount of the bank credit interest charged to us, but at least in the amount of 5% p.a., without the need for a reminder. We reserve the right to claim further damage caused by default.
(3) As of an order size of EUR 5,000, a deposit of 50% is generally to be paid, unless otherwise agreed. The down payment is due immediately after receipt of the order confirmation. If we do not receive the down payment on time, the agreed delivery dates shall be automatically postponed by the corresponding number of days until the down payment is received.
(4) If the Customer is in default of payment, we shall be entitled to withhold the performance of all contracts with the Customer concerned until the outstanding amount has been settled.
(5) The Customer is not entitled to set off due claims against any counterclaims.
(6) The Customer shall have no right of retention in respect of any items of ours in his possession.
6. Retention of title (1) Our entire delivery remains our property until full payment has been received. The Customer is obliged to cooperate in measures concerning the effectiveness or protection of this retention of title. The retention of title to an item intended for export shall be subject to the law of the country of destination at our discretion.
(2) Should we decide to take back the goods due to outstanding payment, the Customer shall be obliged to return them to us after prior notification with a reasonable period of time. We shall then be entitled to realise the goods after taking them back. The proceeds of the realisation shall be credited against the Customer’s liabilities – less reasonable realisation costs.
(3) For the duration of the retention of title, the Customer is obliged to notify us immediately of any intended or effected claim by third parties against the goods, for example in the event of seizure, as well as of any damage to or destruction of the goods, to provide us with the information necessary for legal action and to hand over to us any necessary documents. The Customer must notify us immediately of any change of possession of the goods.
7. Delivery times, delivery(1) Delivery periods shall be calculated from the day on which the contract has been concluded and the agreed down payment has been credited in full to our account. If the Customer requests changes after the contract has been concluded, delivery periods and dates shall be automatically postponed by the number of days between the conclusion of the contract and our approval of the change, unless we have expressly confirmed otherwise.
(2) Unless explicitly agreed as binding, delivery dates or delivery periods shall be understood as non-binding information. Before the expiry of 3 months after the delivery date, the Customer may not withdraw from the contract due to exceeding the delivery deadline. In any case, withdrawal is only possible if the delay is our fault. In any case, we must be notified in advance of an intended withdrawal from the contract and a reasonable grace period must be set. Any claims for damages against us due to delay are excluded. Partial deliveries are permissible.
(3) The delivery time shall be deemed to have been met if we have notified the Customer that the goods are ready for dispatch by the time the delivery time expires.
(4) If the goods are ready for dispatch and the dispatch or acceptance is delayed for reasons for which we are not responsible, the risk to the goods shall pass to the Customer upon receipt of the notification of readiness for dispatch. Goods that have been made ready for dispatch must be called by the Customer without delay, but no later than 10 days after notification. If no call is made, this entitles us to store the goods at our discretion at the expense and risk of the Customer. We shall charge a storage fee of 1% of the invoice amount for each month or part thereof unless we can prove higher storage costs.
(5) If an acceptance procedure for the goods has been agreed, this can only take place at the manufacturing plant. Acceptance must take place immediately after we have notified the Customer of completion. If acceptance does not then take place despite a date being set by us, the goods shall be deemed to have been accepted and we shall be entitled to dispatch the goods without acceptance or to store them at the Customer’s expense and risk. Minor defects which do not significantly impair the function of the product or which can be rectified immediately do not entitle the Customer to refuse acceptance.
8. Trades and orders on callIn the case of contracts and orders on call, as well as in the case of orders whose execution was subsequently deferred with our consent at the request of the Customer, the Customer shall be obliged to make the call at the latest within 6 months from the date of the contract or order or our acceptance of the request for deferral, unless otherwise agreed.
9. Inspection and acceptance of the delivery (1) The Customer must inspect the goods for external damage and function within one week of receipt and, if any defects are found, notify us immediately in detail. Otherwise, the goods shall be deemed to have been approved.
(2) The goods found to be defective shall be stored safely and kept ready for inspection by us or returned to us in accordance with our instructions. The transport costs shall be borne by the Customer for the time being and shall be reimbursed by us if the inspection confirms the defect.
(3) Consignments that arrive at the Customer in a damaged condition shall only be accepted after prior official damage assessment vis-à-vis the carrier and expressly subject to reservation.
10. Warranty, limitation of liability(1) The warranty extends over a period of 12 months from delivery and/or the agreed number of operating hours, if any, for new goods. The first to be reached shall apply. The Customer shall bear the burden of proof for the defect, the time of discovery, as well as the timeliness and sufficient content of the notice of defect. In the case of delivery of replacement goods or replacement parts for goods, as well as in the case of repairs of goods with a warranty period still running, the remaining warranty period shall not be extended. In the event of defects which are notified within the warranty period and which are demonstrably attributable to poor material, faulty design or defective workmanship, the defective part or the goods shall either be replaced or repaired free of charge at our discretion. The warranty on wear parts and consumables is excluded.
(2) In the event of an infringement of intellectual property rights, we may, at our sole discretion, acquire the rights to use the products without prejudice to their fitness for purpose or modify or replace the products so that they are not infringing. Our obligations under this paragraph are subject to (i) our being promptly notified by the Customer of such infringement; and (ii) our receiving adequate assistance from the Customer in defending ourselves; and (iii) our being given a full and unrestricted right to defend ourselves and to settle disputes with third parties through compromise.
(3) In any case, a withdrawal from the contract is only permissible after three unsuccessful attempts at subsequent performance and if the defect is our fault. In any case, we must be notified in advance of an intended withdrawal from the contract and a reasonable grace period must be set. If the Customer chooses to withdraw from the contract due to a legal or material defect after subsequent fulfilment has failed, he shall not be entitled to any additional claim for damages due to the defect. If the Customer chooses compensation for damages after failed subsequent performance, the goods shall remain with the Customer if this is reasonable for him. Damages shall be limited to the difference between the purchase price and the value of the defective item. This does not apply if we have fraudulently caused the breach of contract.
(4) In any case, we shall only be liable for damages culpably caused by us. In the case of slightly negligent breaches of contract, our liability shall be limited to the foreseeable, contract-typical, direct average damage according to the type of goods. This also applies to slightly negligent breaches of duty by our legal representatives or auxiliary persons.
(5) Damages that could have been avoided by reasonable measures taken by the Customer or product traceability measures taken by the Customer are not recoverable.
(6) Customary breakage, shrinkage and minor discolouration or scratches shall not be deemed to be defects.
(7) The maximum amount of liability on the part of ICEE JUNGO to compensate for warranty claims or claims for damages shall be limited to the purchase price paid by the Customer for the product and shall in any case not exceed EUR 500,000.
(8) ICEE JUNGO shall furthermore not be liable for any indirect or consequential damage, in particular loss of profit, loss of use and business interruption damage. The Customer undertakes to indemnify ICEE JUNGO against all claims by the Customer’s end customers for such damages.
(9) The only exception to this is liability due to grossly negligent or intentional behaviour on the part of ICEE JUNGO.
(10) Irrespective of the above provisions, the liability for auxiliary persons of ICEE JUNGO is completely excluded to the extent permitted by law.
(11) The above limitations of liability do not affect claims of the Customer arising from statutory product liability. Furthermore, the limitations of liability do not apply in the event of bodily injury, damage to health or loss of life attributable to us.
(12) Contractual penalties or liquidated damages will not be accepted by ICEE JUNGO.
(13) The operating instructions for the products must be strictly observed and the personnel must be trained accordingly by the Customer. If the Customer receives defective operating manuals or assembly instructions, we shall only be obliged to supply operating manuals or assembly instructions that are free of defects and this only if the defect in the operating manual or assembly instructions prevents proper operation or assembly.
(14) Software: Defects in the software which do not significantly impair the functionality of the product can be rectified by us within the framework of periodic software updates.
(15) Any repair and warranty work shall be carried out exclusively at our registered office or at the registered office of the dealer designated by us. The goods found to be defective shall be stored safely and kept ready for inspection by us or returned to us in accordance with our instructions. The transport costs are to be borne by the Customer for the time being and will be reimbursed by us if the inspection confirms the defect.
11. Control and maintenance of the products after the expiry of the warranty period(1) The Customer’s attention is drawn to the fact that ICEE JUNGO’s products must be regularly checked and maintained even after the expiry of the warranty period. In particular, the guidelines issued by ICEE JUNGO and the applicable safety regulations must be complied with. The Customer is responsible for inspection and maintenance.
(2) ICEE JUNGO recommends the conclusion of a separate maintenance contract. These General Terms and Conditions, and in particular the provisions relating to liability, also apply to any maintenance contracts and the like that may have been concluded.
12. Provisions of foreign lawThe Customer is solely responsible for compliance with the provisions of foreign law, such as import, licensing and safety regulations. The Customer acknowledges that ICEE JUNGO’s products generally require approval from the competent authorities in the country of use. Unless otherwise agreed, the Customer is responsible for obtaining the permits.
13. Property rights All industrial property rights, irrespective of whether they can be entered in a register, such as inventions, trademarks, copyrights, designs, drawings, software, operating instructions, know-how, etc. remain our property. The Customer acquires, as far as necessary, a free licence for the acquired products, which is not transferable separately from the product and which is limited to the lifespan of the product. The Customer undertakes not to copy products of ICEE JUNGO or to have them copied by third parties.
14. ExportIn the event that the goods are exported to a country other than the country specified in the order and accepted by us, all warranties shall lapse.
15. Force majeure events(1) In the event of force majeure and other circumstances for which we are not responsible, we reject any claim for compensation for non-delivery or delayed delivery. Force majeure shall be deemed to include, in particular, the complete or partial shutdown of our manufacturing plants, non-delivery by suppliers, governmental orders, war, strike, fire, flood and all other occurrences that make delivery significantly more difficult or impossible.
(2) In the event of an event of force majeure, we have the right, at our discretion, to postpone the delivery date or to withdraw from the contract.
16. AssignmentThe Customer is not entitled to assign claims or other rights arising from the contract to third parties.
17. Place of performance Unless expressly agreed otherwise, the place of performance for all services under this contract is CH-6300, Cham, Switzerland.
18. Trade secret/data protection (1) The Customer is obliged not to disclose trade secrets, in particular procedural details of our products, to third parties. Drawings, manufacturing details and other agreements are subject to data protection. This data may therefore also not be passed on to third parties.
(2) By accepting the Terms and Conditions, the Customer gives his consent that the data stored about him in the context of the fulfilment of the purpose may be processed by means of EDP.
19. Place of jurisdiction, applicable law The exclusive place of jurisdiction for all disputes arising from or in connection with contracts with ICEE JUNGO is 6330 Cham, Switzerland. Notwithstanding the foregoing, ICEE JUNGO has the right to sue the Customer at its place of business or at the place where the product is located. The legal relationship shall be governed by Swiss law.