General Business Terms

© 2019 by JIMTEX

Proprietor: Antonio Florencio Jiménez,

Bahnhofstraße 35, 78727 Oberndorf am Neckar, Germany

General Terms and Conditions
of Delivery and Performance

for
B2B
by
JIMTEX

§ 1. Scope

    • These General Terms and Conditions of Delivery and Performance (GTC) apply to all our fields of activity towards entrepreneurs as customers, in particular for the manufacture and delivery of the tBag sports bag
    • These General Terms and Conditions apply exclusively in our relationship with the customer. They also apply to all future business transactions, as well as to all business contacts with the customer, such as the commencement of contract negotiations or the initiation of a contract, even if they are not expressly agreed again or if they are not expressly referred to again. The validity of the customer’s general terms and conditions of order or purchase is expressly contradicted
    • Earlier agreements and earlier versions of our General Terms and Conditions shall be cancelled by these General Terms and Conditions.
    • If, in individual cases, contractual obligations are also established with persons or companies who are not themselves to become contracting parties, the limitations of liability in these General Terms and Conditions shall also apply with respect to such persons or companies, insofar as these General Terms and Conditions were included with respect to third parties when the contractual obligation was established. This is particularly the case if the third parties have gained knowledge of these GTC or already had such knowledge when the obligation was established.
    • The acceptance of our services and deliveries by the customer shall be deemed recognition of the validity of these GTC.
  2. § 2. Conclusion of contract
    • Unless otherwise agreed, our offers are subject to change without notice.
    • We are only bound to an order if it has been confirmed by us in text or written form by an order confirmation or if we begin with the execution of the order.
  3. § 3. Content and scope of services
    • In the case of an order for standard goods, the transfer of ownership and the delivery of the goods are owed.
    • If the order involves personalization/finishing by the application of a sample requested by the Customer, the production of the goods and the transfer of ownership and delivery of the goods shall be owed.
  4. § 4. Scope of Delivery and Performance, Performance Periods, Right of Withdrawal, Force Majeure
    • Our offer in text or in writing or our order confirmation is decisive for the scope of our delivery or service. Subsidiary agreements and changes require our confirmation in text or written form. If it turns out after the conclusion of the contract that an order with individual personalization / finishing cannot be carried out by us in accordance with the information provided by the customer (in particular the type and size of the personalization / finishing), we are entitled to withdraw from the contract if and to the extent that the customer is not willing to accept the alternative sulution we propose and to accept any additional costs that may actually arise.
    • We are entitled to partial performance for all deliveries and services to a reasonable extent. We are also entitled to use subcontractors to fulfill our contractual obligations.
    • As soon as we become aware of the risk of inadequate performance on the part of the customer, we are entitled to deliver goods and services only against prepayment or security. Our right to withdraw from individual contracts that have already been concluded remains unaffected if and to the extent that the customer does not provide an advance payment or security deposit within a reasonable grace period.
    • Delivery and service deadlines and dates always represent the best possible information, but are generally non-binding. The beginning of the delivery period as well as the adherence to delivery dates presupposes that the customer provides the required cooperation in a timely and proper manner, that he provides all the documents to be provided and makes any agreed advance payments.
    • If it is agreed that the customer pays in advance, delivery can only take place after we have received the agreed payment in full.
    • The information attached to our offers and order confirmations, such as B. Unless expressly
      marked as binding, drawings and dimensions are only approximate. However, the regulations in 7 apply primarily to personalization / finishing with individual samples.
    • In the event of force majeure or other exceptional circumstances beyond our fault, we will not be in default. In this case, we are also entitled to withdraw from the contract if we are already in default. In particular, we are not in default with delays in delivery, insofar as these were caused by incorrect or late delivery by our suppliers, for which we are not responsible. In the event of temporary obstacles, the delivery or service deadlines are extended or the delivery or service dates are postponed by the period of the hindrance plus a reasonable start-up period.
    • If we are contractually obliged to make advance payments, we can refuse the performance incumbent upon us if it becomes apparent after the conclusion of the contract that our entitlement to the counter-performance is endangered by the customer’s inefficiency. This is particularly the case if the consideration we are entitled to is endangered due to the poor financial situation of the customer or if there are other obstacles to performance such as: B. through export or import bans, through war events, bankruptcy of suppliers or illness-related failures of necessary employees.
    • Transport insurance for goods to be shipped is only taken out if expressly requested. The transport insurance is then taken out in the name and for the account of the customer.
  5. § 5. Rates
    • Our prices are net prices and are always understood to be “ex works” (EXW Incoterms 2010) from our headquarters in Oberndorf am Neckar, unless otherwise agreed. When invoicing, sales tax is added in its respective statutory amount.
    • Shipping costs and packaging costs are charged to the customer at cost price.
    • Without an express agreement, the customer is not entitled to make deductions. If a cash discount agreement is concluded, it does not refer to freight, postage, insurance and shipping costs.
    • If a service period of more than four months has been agreed between the time the order is confirmed and the service is performed, we are entitled to pass on increases in costs that have occurred to us to a corresponding extent to the customer. The same applies if a performance period of less than four months was agreed, but the performance can only be provided by us for reasons for which the customer is responsible later than four months after the confirmation of the order.
  6. § 6. Terms of payment
    • Unless otherwise contractually agreed, our claim for deliveries to a customer based in the Federal Republic of Germany is due without deduction 14 days after receipt of the delivery or after our service has been rendered in full.
    • For deliveries to customers based outside the Federal Republic of Germany, the customer is obliged to pay in advance, unless otherwise agreed. The amount to be paid is due upon conclusion of the contract.
    • If we provide our deliveries or services in definable sections, we are entitled to make a corresponding part of the remuneration due for each section.
    • If the customer is in default of payment, he must compensate us for the damage caused by delay, in particular to pay the statutory default interest. If the customer is in arrears with the payment of a due amount or partial amount for more than 14 days, if the customer viulates the obligations arising from a reservation of title or if the consideration due to us is jeopardized due to the poor financial situation of the customer, the rest of all of the remaining outstanding Claims immediately due for payment.
    • Payment by bill of exchange or acceptances are only permitted with an express agreement and are only then valid for payment.
    • Only undisputed or legally established claims can be set off against our remuneration claims. The same applies to the exercise of a right of retention. The customer is only authorized to exercise a right of retention if it is based on the same contractual relationship.
    • The assignment of claims against us by the customer requires our prior approval, which we will only refuse for an important reason.
  7. § 7. For individual samples: Customer’s obligations to cooperate, documents, release, quality, color deviations, requests for changes
    • If the customer requests personalization / refinement by attaching an individual sample, the fullowing additional rules apply:
    • Even if an individual sample of the customer is attached, the attachment of our own logo is permitted.
    • The customer is responsible for the delivery of flawless documents (namely a vector file in the file format AI, EPS). We are not obliged to check the content provided by the customer, especially not the spelling.
    • If we leave the customer with the contract offer a sample for approval or if we leave a sample after conclusion of the contract, the fullowing applies:
      • If the customer accepts a contract offer with which we have provided a sample, the sample is approved.
      • If we only leave the sample after the contract has been concluded and the customer declares its release after receipt of the sample or if we do not receive an objection within a reasonable period, the sample is deemed to have been approved; We point out these consequences to the customer together with the assignment.
      • The approval means that the sample is binding with regard to the graphic and any text, as well as its placement, location and angle.
      • With regard to the culor, the pattern is only partially binding. Slight culor deviations are possible and are due to the peculiarity of the personalization / finishing and application process. If the customer requests an exact, binding definition of the culor, the customer must provide a proof and the customer must release the culor separately using a sample of the goods to be created. The customer has to expressly inform us of this request. The customer bears the cost of the sample.
    • The customer is responsible for the timely delivery of the documents.
    • The customer has to support us and our employees to a reasonable, customary extent. The customer must provide us with the materials, information and data that we need to provide our services. Data and data carriers must be technically perfect.
  8. § 8. For individual samples: Responsibility, withdrawal, indemnity
    • If the customer requests personalization / refinement by attaching an individual sample, the fullowing additional rules apply:
    • The customer guarantees that the application of the sample and the handover of the goods do not viulate any legal regulations, in particular that no rights of third parties are viulated.
    • The customer bears responsibility for the content and legal admissibility of the documents provided. The customer may only place orders with individual samples that are (a) non-punishable in terms of content, form and overall design (in particular sedition, insult, defamation, threat), (b) not as pornographic, vulgar or obscene, annoying or in any other way are to be viewed as offensive, (c) is not anti-constitutional, extremist, racist or xenophobic, (d) does not contain any content that comes from prohibited groups, (e) does not interfere with third party rights (in particular personal rights, copyrights, trademark rights, patent rights) and ( f) do not viulate any other statutory or official provisions.
    • We are under no obligation to check advertisements for content, forms and designs in accordance with No. 3 above. If an accepted advertisement order
      viulates No. 3, we have the right to withdraw. We must immediately notify the customer of the withdrawal in writing or in writing.
    • If a third party asserts claims for reimbursement of expenses and / or compensation against us for a content listed in No. 3, the customer releases us from the claims of the third party. The customer is obliged to compensate us for any damage that we incur as a result of the assertion of such claims by third parties, including the costs of adequate legal defense. The above provision in this No. 5 only applies if the claims of the third party have not yet expired and the customer is at fault.
  9. § 9. Liability for defects and general liability
    • The limitation period for claims due to defects in our deliveries and services is one year from the start of the statutory limitation period. After the end of this year, we may in particular also refuse supplementary performance without the customer having any claims against us for reduction, withdrawal or compensation. This reduction in the limitation period does not apply to claims for damages other than those due to refused subsequent performance and generally not to claims for fraudulent concealment of the defect.
    • The customer’s claims for supplementary performance due to defects in the service or delivery to be provided by us exist in accordance with the fullowing provisions:
      • If a delivered item is defective, we can first choose whether we provide supplementary performance by eliminating the defect (rectification) or by delivering a defect-free item (replacement delivery). The right to refuse the chosen type of supplementary performance under the statutory requirements remains unaffected.
      • We are entitled to make the subsequent performance owed dependent on the customer paying the remuneration due. However, the customer is entitled to withhuld an appropriate part of the remuneration in relation to the defect.
      • The customer must give us the time and opportunity necessary for the subsequent performance owed, in particular to
        hand over the rejected goods for inspection purposes. In the case of a replacement delivery, the customer must return the defective item to us in accordance with the statutory provisions.
      • We will bear the expenses required for the purpose of inspection and supplementary performance, in particular transport, travel, labor and material costs, if there is actually a defect.
        • If the customer has installed the defective item in another item or attached it to another item in accordance with its type and intended use, we are obliged as part of the supplementary performance to provide the customer with the necessary expenses for removing the defective item and installing or installing the repaired item or to replace the delivered defect-free item. 442 Para. 1 of the German Civil Code (BGB) applies with the proviso that the knowledge of the customer replaces the conclusion of the contract with the installation or attachment of the defective item by the customer.
        • The customer bears the expenses for rectification or supplementary performance resulting from the fact that the purchased item has been moved to a location other than the customer’s place of residence or commercial branch after delivery.
        • If the customer’s request to remedy the defect turns out to be unjustified, we can demand that the costs incurred from the customer be reimbursed.
      • If a thing has been delivered and the customer is a merchant within the meaning of the German Commercial Code, the fullowing also applies:
        The customer’s claims for defects, in particular the claims for supplementary performance, withdrawal from the contract, reduction and compensation, presuppose that the customer has complied with his statutory inspection and notification obligations (377, 381 HGB). If a defect becomes apparent during the inspection or later, the provider must be notified immediately in writing or in writing. The notification is deemed to be immediate if it is made within eight days of discovery of the defect, with the timely sending of the notification being sufficient to meet the deadline. Regardless of this obligation to inspect and give notice of defects, the customer must report obvious defects (including incorrect and short delivery) in text or written form within eight days of delivery, including here
        the timely sending of the notification is sufficient to meet the deadline. If the customer fails to properly inspect and / or report defects, our liability for the undisclosed defect is excluded. This does not apply if we have maliciously concealed the defect.
        A businessman is any entrepreneur who is entered in the commercial register or who runs a trade and needs business operations that are set up in a commercial manner.
      • The customer can only claim damages:
      • for damages that are based on
        – an intentional or grossly negligent breach of duty on our part or
        – on an intentional or grossly negligent breach of one of our legal representatives, executives or vicarious agents
        of duties that are not essential to the contract (cardinal duties) and not main or secondary duties in connection with defects in our deliveries or services.

        • for damages that are based on the willful or negligent breach of essential contractual obligations (cardinal obligations) on our part, one of our legal representatives, executives or vicarious agents.
          Significant contractual obligations (cardinal obligations) within the meaning of this paragraph are obligations whose fulfillment only enables the proper execution of the contract and on the observance of which the customer regularly trusts.
        • We are also liable for damage due to the negligent or willful breach of obligations in connection with defects in our delivery or service (supplementary performance or ancillary obligations) and
        • for damage that falls within the scope of a guarantee we have expressly granted (assurance) or a quality or durability guarantee.
      • In the event of a simple negligent breach of an essential contractual obligation, the amount of liability is limited to the damage that can typically be expected to be expected at the conclusion of the contract if proper care is taken for us.
      • Claims for damages by the customer in the event of simple negligent breach of an essential contractual obligation lapse one year from the start of the statutory limitation period. This does not include damage resulting from injury to life, limb or health.
      • Claims for damages against us from legally mandatory liability, for example under the Product Liability Act, as well as from injury to life, limb or health remain unaffected by the above provisions of this paragraph and exist to the statutory extent within the statutory periods.
      • If third parties are commissioned or invulved to initiate or process the contractual relationship between the parties, the above-mentioned warranty and liability restrictions also apply to the third parties.
      • Rights of the customer according to 445a, 445b and 478 BGB in the event that the customer or its other customers are used in a supply chain remain unaffected in accordance with the fullowing provisions:
        • The customer bears the burden of proof that the expenses for the supplementary performance were necessary and that he could not have refused the supplementary performance to his buyer according to 439 (4) BGB or could have performed the replacement in a cheaper way.
        • The claim from 445a (1) BGB expires in accordance with. 445b (1) BGB in two years from delivery to us by the customer. This period also applies if a longer period would apply according to 438 BGB.
        • The statute of limitations of the claims of the customer against us specified in 437 and 445a (1) BGB due to the defect in a newly manufactured item suld occurs at the earliest two months after the point in time when the customer
          has fulfilled the claims of his buyer, provided that in the ratio of Customers whose buyer the claims were not yet time-barred. This suspension of expiry ends no later than five years after we have delivered the item to the customer.
  10. § 10. Sample orders
    • If the customer orders a product from us to test whether it meets the customer’s requirements (ordering a sample product), it is not a trial purchase. Rather, the customer has to pay the agreed remuneration for the product.
    • If the customer orders this product from us after ordering a sample product, the nature and properties of the sample product sent shall be deemed agreed for these additional products.
  11. § 11. Prohibition of advertising
    • The customer must not advertise – even with orders with individual samples – that they have developed, invented or otherwise significantly developed the goods.
    • The customer may not advertise immorally when selling or otherwise distributing the goods.
  12. § 12. Passing of risk
    • The risk of loss or deterioration of the goods, insofar as shipping has been agreed, passes to the customer when the goods are handed over for shipping, even if partial deliveries are made. If the dispatch is delayed for reasons that are in the person of the customer, the risk is transferred to the customer as soon as the readiness for dispatch is reported.
  13. § 13. Reservation of proprietary rights
    • We reserve title to the goods ordered until all of our current and future claims from the concluded contract and an ongoing business relationship (secured claims) have been paid in full .
  14. § 14. Storage, archiving contract
    • We may (but do not have to) store documents for order fulfillment, in particular sample files, up to three months after order fulfillment. We may destroy documents not reclaimed by the customer. We may delete data immediately after fulfillment of the order. If the customer requests archiving or longer storage, a corresponding agreement can be concluded.
    • It is possible to conclude an archiving agreement regarding the storage of data by us after the time the order has been fulfilled. The object of our archiving is not to save the data for possible loss cases at the customer, but rather to process future orders faster and more easily. It is the customer’s responsibility to back up the data to be archived.
  15. § 15. Period of notice for standing contracts
    • Unless otherwise agreed, standing contracts may be terminated by giving one month’s notice to the end of a month. Permanent contracts are in particular archiving agreements.
  16. § 16. Place of performance, place of jurisdiction, applicable law, severability clause
    • Place of performance and exclusive place of jurisdiction for all disputes arising between the parties from the contractual relationship is our registered office, insofar as the customer is a merchant, a legal entity under public law or a special fund under public law or the customer has no general place of jurisdiction in the Federal Republic of Germany or relocates its place of jurisdiction abroad. As an exception to this, we are also entitled to assert claims against the customer at his general place of jurisdiction. A businessman is any entrepreneur who is registered in the commercial register or who operates a commercial business and needs a business operation set up in a commercial manner. The customer shall have his general place of jurisdiction abroad if he has his place of business abroad.
    • Should a provision in these GTC or a provision within the framework of other agreements be or become invalid, this shall not affect the validity of all other provisions or agreements.
    • The contractual and other legal relationships with our customers shall be governed by German law to the exclusion of the UN Convention on Contracts for the International Sale of Goods.

These General Terms and Conditions are current as of February 15, 2019