General terms and conditions of sale and supply
Unifiller Europe GmbH, Hofmattstraße 16, 79541 Lörrach, Germany
1. Validity of the conditions
1.1. Our goods and services are supplied solely under these terms and conditions. These terms and conditions therefore apply to all future transactions, even in the absence of an additional agreement to that effect. These terms and conditions shall be deemed accepted by the time our goods or services are delivered. Any conflicting declaration by the customer with reference to the customer’s own terms and conditions of business or purchase is hereby excluded.
1.2. All agreements concluded between the customer and us for the purposes of the performance of this contract are to be recorded in writing in the confirmation of the order.
1.3. These terms and conditions shall apply solely to companies, legal entities governed by public law or special-purpose funds organized under public law.
2. Quotations; formation of contract
2.1. Our quotations are subject to confirmation and non-binding. Orders and declarations of acceptance are not valid unless we confirm the commission in writing.
2.2. Price changes are allowed if the period between the formation of the contract and the agreed delivery date is more than six weeks. If after that period there is an increase in wages, the cost of materials or market-based cost prices before the completion of delivery, we reserve the right to adjust the price accordingly. The customer shall be entitled to withdraw only if the price increase is significantly greater than the increase in the cost-of-living index in the period between the order and distribution.
2.3. Drawings, diagrams, measurements, weights and other service-related data are only binding if expressly agreed in writing.
2.4. We reserve the right to make design changes at any time.
2.5. Our employees are not authorized to make verbal ancillary agreements or verbal guarantees of quality that exceed what is stated in the confirmation of order.
3. Prices; payment conditions; payment arrears; annulment
3.1. Our prices are ex-works and quoted in in euros (EXW, Incoterms Revision 2010). Unless expressly agreed otherwise, duty shall be paid at the destination (DDP, Incoterms Revision 2010) exclusive of statutory sales tax. 3r.2. Our invoices are due in full within 30 days of issue. In exceptional cases, and especially for new customers, prepayment is required for all deliveries.
3.3. We reserve the right, provisions of the customer notwithstanding, to offset the customer’s payments first against its existing debts; we will inform the customer of the allocation. If costs and interests have already been incurred, we reserve the right to offset the payment first against the costs, then against the interest and only then against the principal amount.
3.4. A payment shall be considered made only when we have full disposal over the amount in question. If a cheque is issued, the payment shall be considered made only when the cheque has been honored and credited unconditionally to our account.
3.5. If the customer falls into arrears, we reserve the right to charge interest of 12 percentage points over the base rate from the date in question as lump-sum compensation. The interest rate shall be lower if the purchaser can prove a lesser loss; we reserve the right to prove a higher loss.
3.6. If we become aware of circumstances that place the customer’s creditworthiness in doubt, particularly the issuing of cheques without sufficient funds to cover them, enforcement proceedings due to the customer’s liabilities, payment default or impending insolvency, we reserve the right to demand immediate payment in full, of the entire debt owed. We also reserve the right in such circumstances to demand pre-payments or collateral.
3.7. The customer is entitled to offsetting only if its counter-claims have been legally upheld or are not contested.
3.8. If the customer withdraws from an order without just cause, we can, without prejudice to our right to bring a claim for a higher level of actual loss, demand payment of 10% of the sale price to cover the costs incurred in processing the order and for loss of income. The customer shall have the right to prove a lesser loss.
4. Delivery period; impossibility of performance
4.1. Delivery periods or dates, which can be agreed upon on a binding or non-binding basis, must be made in writing.
4.2. The delivery period commences with the despatch of the order confirmation. A precondition for adherence to delivery periods is the punctual supply by the customer of all the necessary documents, licenses and approvals, and in particular plans, as well as adherence to payment conditions and any other obligations.
4.3. The delivery period shall be deemed adhered to if, by the time of its expiry, the goods or services concerned have been provided and the customer has been informed hereof.
4.4. If we do not deliver by the established delivery period and/or delivery date, the customer shall have the right, insofar as it can plausibly claim to have suffered a loss as a result of the delay, to demand compensation of 0.5%, up to a maximum of 5% of the price for that part of the delivery that, owing to the delay, could not be used for its intended purpose.
4.5. If we are unable to deliver an order, the customer shall have the right to demand compensation. The compensation claim shall be limited to 10% of the value of that part of the delivery that, owing to the failure to deliver, could not be used for its intended purpose.
4.6. Any compensation claims that exceed the upper limits stipulated in Nos. 4.4 and 4.5 are excluded. This shall not apply where liability is mandatory under Germany’s Product Liability Act [Produkthaftungsgesetz] or due to another manufacturer’s liability, or in cases of intent, gross negligence, guarantee, the assumption of procurement risks or the breach of essential obligations under this contract, or in cases of death, serious injury or impairment of health. An essential obligation under this contract is any obligation that enables the ordinary performance of the contract and on adherence to which the contractual partner ought to regularly be able to rely.
4.7. This does not entail a change to the burden of proof to the customer’s disadvantage. The customer’s right to withdraw from the contract shall remain unaffected.
4.8. If at the customer’s request delivery is delayed by more than one month from the date the customer is informed that the order is available, we reserve the right to charge storage at 0.5% (up to a maximum of 5%) of the cost of the order, the charge to be levied for each month or part thereof of storage. This does not affect the right to prove higher or lower storage costs.
4.9. Part-deliveries are permissible if preferred by the customer.
4.10. Adherence to the delivery period is dependent on punctual delivery to us.
4.11. Delivery periods may be extended owing to measures taken in the course of industrial relations disputes, in particular strikes and lockouts, and by unforeseen obstacles beyond our control, such as interruptions to operations or delays in the delivery of essential materials, insofar as such obstacles have a significant and demonstrable effect on the delivery of the order. This shall also apply if the circumstances occur at subcontractors. The delivery period shall be extended in proportion to the duration of the measures and obstacles.
4.12. We are furthermore not responsible for obstacles arising during an already existing delay. In important cases, we will inform the customer as soon as possible of the start and end date of such obstacles.
4.13. If the obstacles last longer than three months, the customer is entitled, following an appropriate period of grace, to withdraw from the contract in relation to the part of it not yet fulfilled. If the delivery time is extended or if we become exempt from an obligation, the customer shall not be entitled to bring any claims for compensation. We can only rely on the aforementioned circumstances if we inform the customer immediately.
5. Transfer of risk
5.1. We deliver ex-works (EXW, Incoterms Revision 2010).
5.2. At the customer’s express request, we can at a surcharge deliver the order duty paid to the destination address (DDP, Incoterms Revision 2010). The customer must inform us in advance and in writing of the precise destination (street and building number, city, country and any other information that may be necessary). We shall then undertake all the necessary transport, insurance and import duty arrangements.
5.3. If the customer declines to accept delivery, the risk of accidental loss or damage to the goods in question shall transfer to the customer at the moment of refusal.
5.4. If the delivery is delayed for reasons attributable to the customer or the customer delays acceptance of the goods for any reason, risk shall transfer to the customer.
6. Reservation of title
6.1. The goods supplied shall remain our property until they have been paid for in full.
6.2. The customer is not permitted to pledge the goods or offer them as collateral. In the case of their seizure, confiscation or other type of possession by a third party, the customer shall inform us immediately and provide us with all the information and documentation necessary for the protection of our rights. Enforcement officers and other third parties are to be informed of our ownership of the goods.
6.3. In the event of culpable breach by the customer of its essential obligations under this contract, particularly with regard to payment, we reserve the right to retrieve our goods after having issued a warning and the customer shall return them to us. Our retrieval, seizure or assertion of our ownership of the goods does not constitute a withdrawal from the contract unless we expressly state otherwise.
7. Training, service and installation
7.1. Training, service and installation in relation to the goods supplied shall be charged at cost.
7.2. Where no provision exists already, delivery of our services is to be accepted by the customer once we have informed them that the services are ready for acceptance. They shall be considered accepted once the customer has used them for four weeks without complaint.
8. Liability for defects; reporting of defects; rectification
8.1. We accept liability for the conformity of the supplied goods to their specification when used for their contractual purpose, and further accept liability for defects that render them unusable or significantly affect their usability. The goods shall be deemed in use for their contractual purpose when they are in use for eight hours a day for six days a week.
8.2. Obvious defects that would be readily apparent to the average customer must be reported to us by the customer, via registered mail, within ten working days of delivery. Defects that are not obvious must be reported to us within ten working days of their becoming apparent. Otherwise claims arising from these defects will be excluded. Defects, and especially the notification of faults that have subsequently become apparent, are to be described in as much detail as possible (e.g. by using a fault logging system).
8.3. All defective supplies or services are to be rectified or supplied again as new, the choice to be at our discretion.
8.4. Warranty claims shall expire twelve months after delivery with the exception of claims brought under Germany’s Product Liability Act [Produkthaftungsgesetz] or in cases of intent, gross negligence, the failure of guaranteed features or the breach of essential contractual obligations or in the event of death, injury or harm to health. An essential obligation under this contract is any obligation that enables the ordinary performance of the contract and on adherence to which the contractual partner ought to regularly be able to rely.
8.5. The customer shall give us reasonable time, opportunity and support for the rectification of faults. Failure to do so shall exempt us from the obligation to rectify.
8.6. If we fail to rectify a fault within the grace period allowed, the customer can in accordance with statutory regulations demand a price reduction or withdraw from the contract.
8.7. If the customer requires remedial work to be performed at a location of its choosing, we can satisfy this requirement by providing parts under warranty free of charge but charging for expenses such as labour and travel costs at our standard rates.
8.8. Our warranty does not include wear due to normal usage, particularly of wearing parts, or damage arising after the transfer of risk as a result of incorrect or negligent handling, excessive usage or the use of inappropriate tools or damage arising as a result of factors, particularly external ones, not contractually provided for. Nor does our warranty include one-off software malfunctions. We accept no liability for unauthorized modifications or repairs undertaken by the customer or a third party or for the consequences arising from them.
8.9. The warranty period for rectification is twelve months and runs at least until the expiry of the original warranty period for the goods supplied. For those parts that cannot be used for their intended purpose as a result of the interruption, the warranty shall be extended by a period of time equal to that of the duration of the interruption to operations that was caused by the rectification.
8.10. Additional warranty claims brought by the customer against our agents and us are excluded. This shall not however affect the validity of No. 9 (Other Liability).
9. Other Liability
9.1. Claims for compensation brought by the customer on whatever legal grounds are excluded. This shall not apply where liability is mandatory under Germany’s Product Liability Act [Produkthaftungsgesetz] or due to another manufacturer’s liability or in cases of intent, gross negligence, guarantee, the assumption of purchasing risk or breach of the essential obligations under this contract, or in cases of death, serious injury or impairment of health. An essential obligation under this contract is any obligation that enables the ordinary performance of the contract and on adherence to which the contractual partner ought to regularly be able to rely.
9.2. Compensation for the breach of essential obligations under this contract (No. 9.1 sentence 3) is limited to foreseeable damage typical for this type of contract unless intent or gross negligence is involved. We shall therefor not be liable for the failure to achieve the results intended from the usage of the supplied goods or for any loss of revenue, expected savings, or indirect or consequential damage. Compensation for the breach of essential contractual obligations (No. 9.1 sentence 3) is further limited to €1,000,000 for each case of financial loss and to €3,000,000 for each case of damage to property and persons, unless the damage or loss is caused by intent or gross negligence. These limits shall not apply if the loss is covered by our liability insurance. We hereby undertake to maintain the level of cover in existence at the time of the formation of this contract.
9.3. The aforementioned provisions shall not entail any change to the burden of proof to the customer’s disadvantage.
10. Confidentiality of documents; intellectual property
10.1. We unreservedly retain all rights to quotations, drawings and other documents. These documents may only be disclosed to third parties with our permission and are to be returned to us immediately if the order to which they relate is not placed. The same shall apply for the customer’s documents, although they may be disclosed to third parties to whom we have subcontracted delivery.
10.2. We grant the customer the simple, non-transferrable right to use the supplied software with the agreed characteristics, without alteration and on the equipment agreed. The customer may make two back-up copies without our express agreement.
10.3. If a third party brings a legitimate claim against the customer for the infringement of intellectual property rights or copyright (hereafter ‘intellectual property rights’) as a result of the legitimate contractual usage of goods we have supplied, we shall be liable to the customer as follows:
10.3.1. We shall at our discretion and at our own cost either obtain usage rights for the goods we have supplied, or change the goods in such a way that they no longer infringe intellectual property rights, or exchange the goods. If it is not feasible for us to do so, we shall accept the return of the goods and refund the purchase price.
10.3.2. These obligations shall only apply if the customer informs us immediately and in writing of any claims brought by a third party, does not admit to any breach and allows us to conduct all measures necessary for the defense or settlement of the claim. If the customer ceases to use the product in order to limit any potential damage or loss or for any other significant cause, it shall inform the third party that the cessation of usage does not imply any admission of an infringement of intellectual property rights.
10.3.3. Claims brought by the customer are excluded if the customer is itself responsible for the infringement of intellectual property rights, or has caused the infringement by using the goods in way that we could not have foreseen or by undertaking changes to the goods or by using them in conjunction with other products not supplied by us.
10.4. Any further claims against us are excluded; No. 9 (Other Liability) remains unaffected, as does the customer’s right to withdraw from the contract.
11. Jurisdiction; place of performance; applicable law
11.1. The exclusive jurisdiction is Freiburg im Breisgau, Germany, if the customer is an entrepreneur, legal entity under public law or special-purpose fund organized under public law, or has no place of general jurisdiction within Germany. We reserve the right to also bring claims at the customer’s head office.
11.2. The place of performance is Lörrach, Germany.
11.3. For contractual relations, German law shall apply, with the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
12. Other provisions
12.1. We shall store the customer’s data as necessary for the initiation and processing of the contract (e.g. address and bank details).
12.2. The transfer of the customer’s rights and obligations as provided for in the contract formed with us requires our written permission.
12.3. The invalidity of individual provisions in this contract shall not affect the validity of its remaining parts. This shall not apply if the adherence to the contract would constitute an unreasonable hardship for one of the parties.