§ 1 Application
(1) All delivery, services and offerings by ULMATEC GmbH (hereinafter: "ULMATEC") shall take place only based on these general terms and conditions. They shall be part of all contracts that ULMATEC enters into with its contracting partners (hereafter also: "Client") on the deliveries or services offered by it. They shall apply to any future deliveries, services or offers to Client as well, even if they are not separately agreed on again.
(2) General terms and conditions of Client or third parties shall not be applied even if ULMATEC does not separately object to their application from case to case. Even if ULMATEC refers to a letter that contains business conditions of Client or a third party or refers to such, this shall not constitute consent to the application of those business terms.
§ 2 Offer and conclusion of the contract
(1) Any offers by ULMATEC shall be subject to confirmation and non-binding unless expressly marked as binding or containing a specific period for acceptance. ULMATEC may accept orders or purchase orders within three weeks of receipt.
(2) The written purchasing contract, including these general terms and conditions, shall be exclusively essential for the legislation relationship between ULMATEC and Client. It shall include all agreements between the contracting parties in full. Oral promises made by ULMATEC before conclusion of this contract shall not be legally binding, and oral agreements between the contracting parties shall be replaced by the written contract unless they expressly state that they will be bindingly continued.
(3) Supplements and modifications of the agreements made, including these general terms and conditions, shall require written form to be valid. Except for managing directors or authorised representatives, the employees of ULMATEC shall not have the right to enter into any deviating oral agreements. To maintain written form, telecommunications submission, particularly by fax or mail, shall be sufficient if a copy of the signed declaration is sent.
(4) Information from ULMATEC on the delivered object or service (e.g. weights, sizes, usage values, resilience, tolerances and technical data), as well as our illustrations of the same (e.g. drawings and figures) shall only be approximately relevant unless usability for the contractual purpose requires precise correspondence. They shall not be any guaranteed property features, but descriptions or markings of the delivery or service. Common deviations and deviations that are due to legal provisions or that are technical improvements and the replacement of components by equal parts are permitted where they do not impair usability for the contractual purpose.
(5) ULMATEC reserves title or copyright to all offers and cost estimates made by it and any drawings, figures, calculations, leaflets, catalogues, models, tools and other documents and aids provided to Client. Client must not make such objects accessible to any third parties as such or regarding their contents without the express consent of ULMATEC, or use or reproduce them directly or through third parties. He shall also return such objects completely to ULMATEC on its request and destroy any copies made if they are no longer needed by him in the proper course of business or if negotiations do not lead to conclusion of a contract.
§ 3 Prices and payments
(1) The prices shall apply to the scope of services and deliveries listed in the order confirmation. Additional or special services shall be settled separately. The prices shall be in EURO ex works plus the respective valid statutory VAT, but without packaging, transport, customs, unloading and other public charges that may arise.
(2) Where the agreed prices are based on the list prices by ULMATEC and delivery is to take place later than four months after conclusion of the contract, the list prices of ULMATEC valid at the time of delivery shall apply (each minus any agreed percentage or fixed discount).
(3) Except by special agreement, Client shall make an advance payment at 1/3 of the total indicated in the order confirmation upon receipt of the order confirmation from ULMATEC. Another 1/3 of the total indicated in the order confirmation shall be paid by Client once he receives the notification from ULMATEC that the main parts to be delivered are ready for shipment or the services may be rendered. The remaining amount of 1/3 shall be due for payment after complete delivery of the owed service. Invoiced amounts shall be payable within fourteen days without any deduction unless something different is agreed in writing. The date of the payment shall be according to its receipt by ULMATEC. Cheques shall be deemed payment only after they are redeemed. If Client does not pay at the due date, the outstanding amounts shall bear interest at least at 9 % above the base interest rate from the due date onwards; assertion of higher interest and further damages in case of default shall not be affected.
(4) Set-off against counter claims of Client or retention of payments due to such claims shall lonely be permitted where the counter-claims are undisputed or finally determined.
(5) ULMATEC shall have the right to only perform or order any pending deliveries or services against prepayment or collateral if any circumstances become known to it after conclusion of the contract that that are suitable to essentially reduce creditworthiness of Client and through which payment of the unpaid claims of ULMATEC by Client would be endangered.
(6) The assignment of claims against ULMATEC by Client to third parties shall only be permitted with its written consent.
§ 4 Delivery and delivery period
(1) Deliveries shall be made ex works.
(2) Any deadlines and dates announced by ULMATEC for deliveries and services shall always only be approximates, unless a fixed period or a fixed date has been promised or agreed in writing. Where shipment has been agreed, delivery periods and date shall refer to the time of handover to the forwarder, carrier or other third party charged with transport.
(3) ULMATEC may - notwithstanding its rights from default of Client - demand that Client extend the delivery and performance periods or delay delivery and performance dates by the period in which Client does not meet his contractual obligations towards ULMATEC.
(4) ULMATEC shall not be liable for impossibility or delay of delivery where this is caused by force majeure or other unforeseeable events at the time of conclusion of the contract (e.g. operational interferences of all kinds, problems in material or energy procurement, transport delays, strikes, legal lock-out, lack of workers, energy, or raw materials, problems in procurement of necessary authority approvals, authority measures or the lack thereof, improper or untimely delivery by suppliers), which are not the fault of ULMATEC. Where such events make delivery or performance essentially more difficult or impossible for ULMATEC and where the obstruction is not temporary by nature, ULMATEC shall have the right to rescission of the contract. In case of temporary obstacles, the delivery or performance periods shall be expended or the delivery or performance dates delayed by the period of the impairment, plus an appropriate start-up period of usually 14 days. Where acceptance of the delivery or service is not reasonable for Client due to the delay, he may declare rescission of the contract by written declaration to ULMATEC.
(5) ULMATEC shall only have the right to make partial deliveries if
• the partial delivery is usable for Client in the scope of the contractual purpose,
• the delivery of the remaining ordered goods is ensured and
• Client must not incur any considerable additional effort or additional costs from this (unless ULMATEC agrees to bear such costs).
(6) If ULMATEC enters default of delivery or service or if delivery or service becomes impossible for any reason, the liability of ULMATEC shall be limited to damages according to the proviso of § 8 of these general terms and conditions.
§ 5 Place of performance, shipping, packaging, passing of risk, possible acceptance
(1) The place of performance for all obligations from the contractual relationship shall be Ulm, unless determined otherwise.
(2) The shipping type and packaging shall be subject to the diligent discretion of ULMATEC.
(3) The risk shall pass to Client at the latest at handover of the object of delivery (with the start of loading being essential) to the carrier or other third party determined to execute the shipment. This shall apply also if partial deliveries are made or if ULMATEC has assumed any other services (e.g. shipping or installation). If shipping or handover is delayed for reasons the cause of which is with Client, the risk shall pass to Client from the day on which the delivered object is ready for shipping and ULMATEC has reported this to Client.
(4) Storage costs after passing of the risk shall be assumed by Client. At storage by ULMATEC, the storage costs shall be 0.25 % of the invoiced amount for the objects of delivery to be stored per completed week. The assertion and proof of higher or lower storage costs shall be reserved to both contracting parties.
(5) The shipment shall only be insured by ULMATEC at the express request for Client and at his expense against theft, breakage, transport, fire and water damage or any other insurable risks.
(6) Where acceptance is required, the purchase object shall be deemed accepted if
• The delivery and, if ULMATEC owes installation as well, installation has been completed,
• ULMATEC has informed Client of this with reference to the fictitious acceptance purs. to this § 5 (6) and asked him for acceptance,
• Ten working days have passed since delivery or installation or Client has started using the purchase object (e.g. taken the delivered system into operation) and in this case ten working days have passed since delivery or installation, and
• Client has not declared non-acceptance during this period for any other reason than a defect reported to ULMATEC that makes use of the purchase object impossible or essentially impairs it.
§ 6 Warranty, defects of material
(1) The warranty period shall be one year after delivery or, where acceptance is required, after acceptance.
(2) The delivered objects must be carefully examined without delay after delivery to Client or the third party determined by him. They shall be deemed approved by Client regarding obvious defects or other defects that would have been recognisable at careful examination without delay if ULMATEC does not receive any written report of defects from Client within seven working days of delivery. Regarding any other defects, the delivered objects shall be deemed approved by Client if the complaint about defects is not received by ULMATEC within seven working days of the time at which the defect became evident; if the defect was already evident to Client at an earlier time at normal use, however, this earlier time shall be relevant for commencement of the reporting period. On request of ULMATEC, any delivered object subject to complaint shall be returned to ULMATEC postage paid. At justified complaint about the defect, ULMATEC shall compensate Client for the costs for the cheapest way of shipping; this shall not apply if the costs increase because the delivered object was located at any site other than the site of intended use.
(3) In case of defects of material in the delivered objects, ULMATEC shall initially be obliged and entitled to improvement or replacement delivery subject to its choice to be made within an appropriate period. In case of failure, i.e. impossibility, unreasonableness, refusal or inappropriate delay of the improvement or replacementdelivery, Client may declare rescission of the contract or reduce the purchasing price
appropriately.
(4) If a defect is due to the fault of ULMATEC, Client may demand damages subject to
the provisions according to § 8.
(5) In case of defects in the parts of other manufacturers that ULMATEC cannot remove for any license-law or factual reasons, ULMATEC shall, at its discretion, assert its warranty claims against the manufacturer and supplier for the account of Client, or assign them to Client. Warranty claims against ULMATEC shall only be present in case of such defects subject to the other prerequisites and according to the proviso of these general terms and conditions if court assertion of the above claims against the manufacture and supplier has been unsuccessful or has no expectation of success, e.g. due to insolvency. During the term of the legal dispute, exploration of the respective
warranty claims of Client shall be suspended.
(6) The warranty shall not apply if Client changes or has the delivered object changed by third parties without the consent of ULMATEC and this makes removal of the defect impossible or unreasonably more difficult. In any case, Client shall assume the additional costs for removal of defects arising from the change.
(7) Any delivery agreed on with Client from case to case for used objects shall be subject to exclusion of any warranty for defects of materials.
§ 7 Property rights
(1) ULMATEC represents that the delivered object is free of any commercial property rights or copyrights of third parties. Either contracting partner shall inform the other contracting partner without delay in writing if any claims are raised against him due to violation of such rights.
(2) If the delivered object violates any commercial property right or copyright of a third party, ULMATEC shall, at its discretion and its expense, change or replace the delivered object so that no third-party rights are violated anymore, but the delivered object continues to meet the contractually agreed functions, or procure the usage right for Client by conclusion of a license contract. If this is not possible within an appropriate period, Client shall have the right to declare rescission of the contract or to appropriately reduce the purchasing price. Any claims to damages of Client shall be subject to the limitations of § 8 of these general terms and conditions.
§ 8 Liability for damages due to fault
(1) The liability of ULMATEC for damages, no matter the legal reason, specifically from impossibility, default, defective or wrong delivery, violation of the contract, violation of obligations in contract negotiations and tort shall be limited according to the provision of this § 8 where fault is relevant.
(2) ULMATEC shall not be liable in case of simple negligence of its bodies, statutory representatives, employees or their servants where no violation of essential contractual obligations are concerned. Essential contractual obligations shall be the obligations to timely delivery and installation of the delivered object, its freeness of defects that impair its function or suitability for use more than inessentially, as well as consulting, protection and custody obligations that are to enable contractual use of the delivered object for Client or that serve protection of life, or limb of staff of Client or protection of his property from considerable damage.
(3) Where ULMATEC is liable for damages purs. to § 8 (2), this liability shall be limited to damage that ULMATEC has foreseen as possible consequence of violation of the contract at conclusion of the contract, or that it would have had to foresee at application of common diligence. Indirect damage and consequential damage that are the consequences of defects of the delivered object shall also only be eligible for reimbursement where such damage is typically expected at intended use of the delivered object.
(4) In case of liability for simple negligence, the reimbursement obligation of ULMATEC for property damage and resulting further financial damage shall be limited to an amount of EUR 2 million per claim even in case of violations of essential contractual
obligations.
(5) The above exclusions and limitations of liabilities shall apply at the same scope to the benefit of the bodies, statutory representatives, employees and the servants of ULMATEC.
(6) Where ULMATEC provides any technical information or acts as a consultant and such information or consultancy are not part of the contractually agreed scope of services owed by it, this shall be done free of charge and under exclusion of any liability.
(7) The limitations of this § 8 shall not apply to the liability of ULMATEC for wilful conduct, guaranteed property features, due to violation of life, body or health or subject to the product liability law.
§ 9 Reservation of title
(1) The following reservation of title shall serve to secure all respective present current and future claims of ULMATEC against Client from the entire business relationship between the contracting parties.
(2) The goods delivered to Client by ULMATEC shall remain the property of ULMATEC until complete payment of all secured claims. These goods are hereinafter referred to as "goods subject to retention of title".
(3) Client shall keep the goods subject to retention of title free of charge for ULMATEC.
(4) Client shall have the right to process and sell the goods subject to retention of title in his proper course of business until the utilisation case occurs (paragraph 8). Pledging and provision as collateral shall not be permitted.
(5) In case of further sale of the goods subject to retention of title, Client hereby assigns any resulting claims against the purchaser - in case of shared title of ULMATEC in the goods subject to retention of title prorated according to the shared title - to ULMATEC as collateral. ULMATEC herby accepts this assignment. The same shall apply to any other demands that replace the goods subject to retention of title or otherwise arise regarding the goods subject to retention of title, such as insurance claims or claims from tort at loss or destruction. ULMATEC authorises Client revocably to collect the claims assigned to ULMATEC in his own name. ULMATEC must only revoke this collection authorisation in the utilisation case.
(6) If any third parties access the goods subject to retention of title, specifically by seizing, Client shall inform them of the property of ULMATEC without delay and inform ULMATEC of this to enable it to assert its property rights. Where the third party is unable to reimburse ULMATEC for any court or out-of-court costs arising in this context, Client shall be liable to ULMATEC for this.
(7) ULMATEC shall release the goods subject to retention of title and the objects or claims replacing them where their value exceeds the amount of the secure claims by more than 50 %. Selection of the objects to be released according to this shall be with ULMATEC.
(8) If ULMATEC declares rescission of the contract (utilisation case) in case of violation of the contract by Client - particularly in case of default of payment - it shall have the right to demand return of the goods subject to retention of title from Client and/or to revoke the collection authorisation granted.
§ 10 Final provisions
(1) If Client is a merchant, legally entitled under public law or a public-law special funds, or if he has no general place of jurisdiction in the Federal Republic for Germany, the place of jurisdiction for any disputes from the business relationship between ULMATEC and Client shall be Ulm. Mandatory statutory provisions on exclusive places of jurisdiction shall not be affected by this rule.
(2) The relationships between ULMATEC and Client shall be subject only to the law of the Federal Republic of Germany. The convention of the United Nations on contracts for their international sale of goods from 11 April 1980 (CISG) shall not apply.
(3) If individual provisions of these general terms and conditions are or become invalid, the legal validity of the remaining provisions shall not be affected by this.
(4) Where the contract or these general terms and conditions contain any gaps, these gaps shall be filled by such legally valid provisions that the contracting partners would have agreed according to the economic target of this contract and the purpose of these general terms and conditions if they had known of the gap in the provisions.
(5) Client takes note that ULMATEC collects and saves data from the contractual relationship for the purpose of proper execution of this purs. to § 28 Federal Data Privacy Act and reserves the right to submit the data to third parties (e.g. insurances) where required for performance of the contract.
