General Terms and Conditions
As of 16.07.2021
General Terms of Delivery for ULTRA PRÄZISION MESSZEUGE GMBH, Weitzkaut 3, 63864 Glattbach, GERMANY
§ 1 Validity
(1) All ULTRA PRÄZISION MESSZEUGE GMBH (hereinafter referred to as “Seller”) deliveries, services and offers are exclusively based on these General Terms of Delivery, unless otherwise agreed in writing. These are part of all contracts that the Seller has with their contractual partners (hereinafter also referred to as “Customer”) about deliveries or services offered by the Seller. They shall also apply to all future deliveries, services or offers to the Customer, even if they are not separately agreed again.
(2) The terms and conditions of the Customer or third parties shall not apply, even if the Seller does not separately object to their validity in individual cases. Even if the Seller refers to a letter, which contains or refers to the terms and conditions of the Customer or a third party, this does not imply any agreement with the validity of those terms and conditions.
§ 2 Offer and conclusion of contract
(1) All the Seller’s offers are subject to change and non-binding, unless they are expressly marked as binding or contain a specific acceptance period. The Seller may accept commissions or orders within 14 days of receipt.
(2) The presentation of the goods and services in our online shop does not constitute a legally binding offer, but an invitation to order (invitatio ad offerendum).
(3) By clicking the “Place order” button in the last step of the ordering process in the online shop, the client makes a binding offer to purchase or book the goods and/or services displayed in the order overview. Immediately after sending the order via the online shop, the Customer receives an order confirmation, which does not represent an acceptance of their contractual offer yet though.
(4) A contract between the Customer and Seller is concluded as soon as the Seller accepts the order and / or booking by a separate statement (order confirmation) or the goods are dispatched.
(5) Information provided by the Seller on the subject matter of the delivery or service (e.g. the weights, dimensions, consumption values, resilience, tolerances and technical data) well as our representations thereof (e.g. drawings and illustrations) shall only be approximately relevant unless the usability for the contractually intended purpose requires an exact agreement. They are not guaranteed characteristic features, but descriptions or markings of the delivery or service. Customary deviations and deviations which are based on legal regulations or represent technical improvements as well as the replacement of components by equivalent parts shall be permissible, as long as they do not impair the usability for the contractually intended purpose.
(6) The Seller retains ownership or copyright of all offers and cost estimates submitted by them as well as drawings, illustrations, calculations, brochures, catalogues, models, tools and other documents and aids made available to the Customer. The Customer may not make these items available to third parties, either as such or in terms of content, disclose them, use them themselves or through third parties, or reproduce them without the express consent of the Seller. At the request of the Seller, they shall return these items in full to the Seller and destroy any copies made if they are no longer required by them in the ordinary course of business or if negotiations do not lead to the conclusion of a contract. The storage of electronically provided data for the purpose of normal data backup is excluded from this.
§ 3 Prices and payment
(1) The prices shall apply to the scope of services and delivery listed in the order confirmations. Additional or special services shall be charged separately. The prices shall be calculated in EUR ex works plus packaging, statutory value-added tax, customs duties in the case of export deliveries, costs for specific documents as well as levies and similar public charges.
(2) If the agreed prices are based on the Seller's list prices and the delivery is to be made more than four months after conclusion of the contract, the Seller's list prices valid at the time of delivery shall apply.
(3) Invoice amounts are to be paid immediately without any deduction, unless otherwise agreed in writing.
(4) The offsetting against the Customer’s counterclaims or the retention of payments due to such claims shall only be permissible if the counterclaims are undisputed or legally established or they result from the same order under which the delivery concerned was made.
(5) The Seller shall be entitled to carry out or render outstanding deliveries or services only against advance payment or security if, after conclusion of the contract, they become aware of circumstances that are suitable to significantly reduce the Customer’s creditworthiness and which endanger the payment of the Seller’s outstanding claims by the Customer arising from the respective contractual relationship.
§ 4 Delivery and delivery time
(1) Unless otherwise agreed, deliveries shall be ex works. The costs for delivery are met by the Customer.
(2) Deadlines and dates for deliveries and services promised by the Seller shall always be only approximate, unless a fixed deadline or a fixed date has been expressly promised or agreed. If shipment has been agreed, delivery periods and delivery dates shall refer to the time of transfer to the forwarding agent, carrier or other third party commissioned with the transport.
(3) Without prejudice to its rights arising from default on the part of the Customer, the Seller may require the Customer to extend delivery and performance periods or to postpone delivery and performance dates by the period during which the Customer fails to fulfil its contractual obligations to the Seller.
(4) The Seller shall not be liable for the impossibility of delivery or delays in delivery if these are caused by force majeure or other events not foreseeable at the time of conclusion of the contract (e. g. operational disruptions of any kind, difficulties in procuring materials or energy, transport delays, strikes, lawful lockouts, lack of manpower, energy or raw materials, difficulties in procuring necessary official permits, official measures or missing, incorrect or late delivery by suppliers) for which the Seller is not responsible. Insofar as such events substantially impede or render impossible delivery or service by the Seller and the impediment is not only of a temporary nature, the Seller shall be entitled to withdraw from the contract. In the event of hindrances of a temporary nature, the delivery or service periods shall be extended or the delivery or service dates postponed by the period of the hindrance plus a reasonable starting period. Insofar as the Customer cannot be expected to accept the delivery or service as a result of the delay, they can withdraw from the contract by means of an immediate written declaration to the Seller.
(5) The Seller is entitled to make partial deliveries, in particular if
• The partial delivery is usable for the Customer within the scope of the contractual intended purpose,
• The delivery of the remaining ordered goods is ensured and
• The Customer does not incur any significant additional expenses or costs as a result (unless the Seller agrees to bear these costs).
If the partial delivery is made on the basis of the Customer’s express order, the Customer shall bear the additional expenditure or the additional costs.
(6) If the Seller is in default with a service or delivery or if a delivery or service becomes impossible for the Seller for whatever reason, the Seller’s liability shall be limited to compensation for damages in accordance with § 10 of these General Terms of Delivery.
§ 5 Place of performance, dispatch, packaging, transfer of risk, acceptance
(1) The place of performance for all obligations arising from the contractual relationship is the Seller’s registered office, unless specified otherwise.
(2) The dispatch method and the packaging are subject to the dutiful discretion of the Seller. D
(3) The risk shall pass to the Customer at the latest when the delivery item is handed over (whereby the start of the loading process shall be decisive) to the forwarding agent, carrier or other third party designated to carry out the shipment. This shall also apply, if partial deliveries are made or if the Seller has taken over other services (e. g. dispatch or installation). If dispatch or handover is delayed as a result of circumstances which the Customer is responsible for, the risk shall pass to the Customer on the day on which the delivery is ready for dispatch and the Seller notified the customer accordingly.
(4) Storage costs after transfer of risk shall be borne by the Customer. In the event of storage by the Seller, the storage costs shall amount to 0.5% of the invoice amount of the delivery items to be stored per expired week. We reserve the right to claim and prove other or lower storage costs.
(5) The consignment shall in principle be insured by the Seller against theft, breakage, transport, fire and water damages or other insurable risks at the Customer’s expense.
(6) Insofar as acceptance has to take place, the delivery shall be considered as accepted, if
• The delivery and, if the Seller is also responsible for the installation, the installation has been completed,
• The Seller has informed the Customer of this with reference to the assumed acceptance in accordance with this § 5 (6) and has requested the latter to accept the goods,
• 12 working days have elapsed since delivery or installation or the Customer has begun using the purchased item (e. g. has put the delivered system into operation) and in this case six working days have elapsed since delivery or installation and
• The Customer has omitted acceptance within this period for a reason other than a defect notified to the Seller which makes the use of the object of sale impossible or significantly impairs it.
§ 6 Warranty, material defects
(1) The warranty period shall be one year from delivery or, if acceptance is required, from acceptance. This period shall not apply to claims for damages from the Customer arising from injury to life, body or health or from intentional or grossly negligent breaches of duty by the Seller or its vicarious agents, which shall in each case be time-barred in accordance with the statutory provisions.
(2) The delivered items are to be carefully inspected immediately after delivery to the Customer or to the third party designated by them. With regard to obvious defects or other defects, which would have been recognisable in the course of an immediate, careful inspection, they shall be deemed to have been approved by the buyer if the Seller does not receive a written notice of defect within seven working days of delivery. With regard to other defects, the delivery items shall be deemed to have been approved by the buyer if the notice of defect is not received by the Seller within seven working days of the time when the defect became apparent; however, if the defect was already apparent at an earlier time during normal use, this earlier time shall be decisive for the commencement of the period for giving notice of defect. A rejected delivery item is to be returned to the Seller carriage paid, at the Seller’s request.
(3) In the case of delivered items’ material defects, the Seller shall initially be obliged and entitled to rectify the defect or make a replacement delivery after a choice to be made within a reasonable period of time. In the event of failure, i.e. impossibility, unreasonableness, refusal or unreasonable delay of the rectification or replacement delivery, the Customer may withdraw from the contract or reduce the purchase price accordingly.
(4) If a defect is based on the fault of the Seller, the Customer can claim compensation for damages under the conditions specified in § 10.
(5) In the event of defects in components of other manufacturers which the Seller cannot remedy for licensing or actual reasons, the Seller shall, at its discretion, assert its warranty claims against the manufacturer and supplier on the Customer’s account or assign them to the Customer. Warranty claims against the Seller for such defect shall only exist under the other conditions and in accordance with these General Terms of Delivery if the judicial enforcement of the aforementioned claims against the manufacturer and supplier was unsuccessful or is futile, for example due to insolvency. During the duration of the legal dispute, the statute of limitations of the relevant Customer’s warranty claims against the Seller shall be suspended.
(6) The warranty shall lapse if the Customer changes the delivery item or has it changed by a third party without the consent of the Seller and the removal of the defect is thereby rendered impossible or unreasonably difficult. The contractual object shall only be used for the contractually intended purpose. In any case, the Customer shall bear the additional costs of remedying the defect arising from the changes.
(7) Any delivery of used items agreed with the Customer in individual cases shall be made to the exclusion of any warranty for material defects.
§ 7 Software use
(1) If software is included in the scope of delivery, the Customer shall be granted a non-exclusive and non-transferable right to use the delivered software including its documentation. It is provided for use on the delivery item intended for this purpose. Use of the software on more than one system is prohibited.
(2) The Customer may only copy, revise, translate or convert the software from the object code into the source code to the extent permitted by law (Sections 69 a ff of UrhG – [German Act on Copyright and Related Rights]). The Customer undertakes not to remove manufacturer’s details, in particular copyright notices, or to change them without the supplier’s prior express consent.
(3) All other rights to the software and the documentation, including the copies, shall remain with the supplier or the software supplier. The granting of sublicenses is not permitted.
§ 8 Reverse engineering exclusion – confidentiality
(1) The Customer is obliged not to disclose any confidential information (including business secrets) that find out about in connection with this contract and its execution to third parties. Confidential information is information that is marked as confidential or whose confidentiality is evident from the circumstances, regardless of whether it has been communicated in written, electronic, embodied or oral form. This includes in particular drawings, principle sketches and concept descriptions for gauges, measuring instruments and testing devices. Information that is not confidential in the above sense is information that
a) Was apparent or known to the Customer at the time of delivery or has subsequently become known;
b) Has been made available to the Customer without infringement by a third party; or
c) Developed by the Customer themselves without the use of confidential information.
(2) The Customer is prohibited from obtaining confidential information by means of reverse engineering. Reverse engineering in this context means all actions, including observing, testing, examining, and reassembling with the aim of obtaining confidential information.
(3) Except in the cases of Art. 5 of GeschGehG [German Act for the Protection of Business Secrets], the obligation to maintain secrecy pursuant to paragraph 1 shall also not apply if the Customer is obliged to disclose the confidential information by law or on the basis of a final or legally binding decision by the authorities or a court. In this case, the Customer will immediately inform them of the obligation to disclose. In addition, the Customer shall indicate in the course of disclosure that, if this is the case, business secrets are involved and shall work towards ensuring that use is made of the provisions in Art. 16 ff. GeschGehG.
(4) If the Customer breaches its obligations under § 8, they shall owe a contractual penalty in the amount of 20% of the price offered or, in the event of a conclusion of a contract, the agreed price of the product concerned, unless it is not responsible for the breach of obligations.
(5) Unless otherwise agreed, the information submitted by the Customer shall not be considered confidential. The business partner’s data may be stored and used for our own purposes in a legally permissible manner.
§ 9 Property rights
(1) The Seller warrants that the delivery item is free of industrial property rights or third-party copyrights in accordance with § 9. Each contracting party shall notify the other contracting party in writing without delay if claims are asserted against it on account of the infringement of such rights.
(2) In the event that the delivery item infringes an industrial property right or third-party copyright, the Seller shall, at its discretion and at its expense, modify or replace the delivery item in such a way that no third party rights are infringed any more, but the delivery item continues to fulfil the contractually agreed functions, or procure the right of use for the Customer by concluding a licence agreement with the third party. If the Seller does not succeed in doing so within a reasonable period of time, the Customer is entitled to withdraw from the contract or to reduce the purchase price appropriately. Any claims for damages on the part of the Customer are subject to the limitations of § 10 of these General Terms of Delivery.
(3) With the infringements of rights due to other manufacturers’ products delivered by the Seller, the Seller shall, at its discretion, assert its claims against the manufacturer and supplier on the Customer’s account or assign them to the Customer. Claims against the Seller for these cases shall only exist in accordance with § 9 if the judicial enforcement of the aforementioned claims against the manufacturer and supplier was unsuccessful or is futile, for example due to insolvency.
§ 10 Liability for compensation for damages due to culpability
1) The Seller’s liability for compensation for damages, irrespective of the legal basis, in particular for impossibility, delay, defective or incorrect delivery, breach of contract, breach of obligations during contract negotiations and tort, shall be limited in accordance with the provisions of § 10 to the extent that this depends on culpability.
(2) The Seller shall not be liable in the event of simple negligence by its bodies, legal representatives, employees or other vicarious agents, unless it is a breach of essential contractual obligations. Essential contractual obligations are the obligation to deliver and install the delivery item in due time, its freedom from defects of title as well as such material defects that impair its functionality or usability more than insignificantly, as well as consulting, protection and care obligations that are intended to enable the Customer to use the delivery item in accordance with the contract or are intended to protect the life and limb of the Customer’s personnel or to protect the Customer’s property from significant damage.
(3) Insofar as the Seller is liable for compensation for damages on the merits in accordance with § 10 (2), this liability shall be limited to damages which the Seller has foreseen at the time of conclusion of the contract as a possible consequence of his breach of contract or which they should have foreseen if they had exercised due care. Furthermore, indirect damage and consequential damage resulting from defects of the delivery item shall only be eligible for compensation if such damage can typically be expected when the delivery item is used as intended.
(4) In the event of liability for simple negligence, the Seller’s obligation to pay compensation for property damage and financial losses resulting from this shall be limited to an amount of EUR 500,000 per claim, even if it is a breach of essential contractual obligations.
(5) The above exclusions and limitations of liability shall apply to the same extent in favour of the Seller’s representatives, employees and other vicarious agents.
(6) Insofar as the Seller provides technical information or acts in an advisory capacity and this information or advice is not part of the contractually agreed scope of services owed by them, this shall be done free of charge and to the exclusion of any liability.
(7) The limitations of § 9 shall not apply to the Seller’s liability for intentional conduct, for guaranteed characteristic features, for injury to life, limb or health or under the Produkthaftungsgesetz [German Product Liability Act].
§ 11 Retention of title
(1) The following agreed retention of title shall serve to secure all the Seller’s existing current and future claims against the Customer arising from the supply relationship between the contractual partners from the underlying main contract (including balance claims from a current account relationship restricted to this supply relationship).
(2) The goods delivered by the Seller to the Customer shall remain the property of the Seller until all secured claims have become the property of the Seller. The goods as well as the goods covered by the retention of title and replacing them in accordance with the following provisions shall hereinafter be referred to as “goods subject to retention of title”.
(3) The customer shall store the goods subject to retention of title free of charge for the Seller.
(4) The purchaser shall be entitled to process and sell the goods subject to retention of title in the ordinary course of business until the event of exploitation (Section 9). Pledges and transfers by way of security are not permitted.
(5) If the goods subject to retention of title are processed by the Customer, it is agreed, that the processing is carried out in the name and on account of the Seller as manufacturer and that the Seller directly acquires the ownership or – if the processing is carried out from materials of several owners or the value of the processed object is higher, than the value of the goods subject to retention of title – the co-ownership (fractional ownership) of the newly created object in the ratio of the value of the goods subject to retention of title to the value of the newly created goods. In the event that no such acquisition of ownership should occur with the Seller, the Customer shall already now transfer their future ownership or – in the above-mentioned proportion – co-ownership of the newly created object to the Seller as security. If the goods subject to retention of title are combined or inseparably mixed with other items to form a uniform item and if one of the other items is to be regarded as the main item, the Seller shall assign to the Customer, to the extent that the main item belongs to the Seller, the proportionate co-ownership of the uniform item in the proportion stated in sentence 1.
(6) In the event of resale of the goods subject to retention of title, the Customer shall hereby assign to the Seller by way of security the resulting claim against the purchaser – in the event of co-ownership by the Seller of the goods subject to retention of title in proportion to the co-ownership share. The same shall apply to other claims which take the place of the goods subject to retention of title or otherwise arise with regard to the goods subject to retention of title, such as insurance claims or claims arising from tort in the event of loss or destruction. The Seller shall revocably authorise the Customer to collect the claims assigned to the Seller in its own name. The Seller may only revoke this direct debit authorisation in the event of exploitation.
(7) If third parties have access to the goods subject to retention of title, in particular by seizure, the Customer shall immediately inform them of the Seller’s ownership and inform the Seller thereof, in order to enable them to enforce their ownership rights. If the third party is not in a position to reimburse the Seller for the judicial or extrajudicial costs incurred in this connection, the Customer shall be liable to the Seller for this.
(8) The Seller shall release the goods subject to retention of title as well as the items or claims replacing them, insofar as the value exceeds the amount of the secured claim by more than 50%. The Seller is entitled to select the items to be released thereafter.
(9) If the Seller withdraws from the contract in the event of conduct contrary to the terms of the contract on the part of the customer – in particular default in payment (event of exploitation), they shall be entitled to demand the return of the goods subject to retention of title.
§ 12 Final provisions
(1) If the Customer is a merchant, a legal entity under public law or a special fund under public law or if they have no general place of jurisdiction in the Federal Republic of Germany, the place of jurisdiction for any disputes arising from the business relationship between the Seller and the Customer shall be, at the Seller’s option, Aschaffenburg or the Customer’s registered office. However, Aschaffenburg is the exclusive place of jurisdiction for legal action against the Seller. Mandatory statutory provisions on the exclusive jurisdiction remain unaffected by this provision.
(2) The relations between the Seller and the Customer shall be subject exclusively to the law of the Federal Republic of Germany. The United Nations Convention on Contracts for the International Sale of Goods dated 11.04.1980 [CISG] shall not apply.
(3) Insofar as the contract or these General Terms of Delivery contain loopholes, those legally effective provisions shall be deemed to have been agreed for filling these loopholes which the contractual parties would have agreed according to the economic objectives of the contract and the purpose of these General Terms of Delivery had they been aware of the loophole.