$1Scope, Contractual Components
(1) The following terms and conditions apply to all of unoTech GmbH’s business sales.
(2) unoTech GmbH works exclusively on the basis of these terms and conditions.
This also applies if the customer, for their part, works on the basis of their own general terms and conditions. Should this be the case, the Parties’ matching terms and conditions apply; where there are divergences, the statutory provisions shall apply instead of the conflicting regulations. Where only one Party has formulated a regulation on a topic in their Terms, this will become part of the Contract.
(3) The scope and properties of the deliveries and services – unless otherwise agreed – will be determined exclusively by unoTech GmbH’s offer/written order confirmation. Ancillary agreements and amendments require written confirmation.
(4) The following are the components of the Contract
- a) the offer
- b) this Contract
- c) unoTech GmbH’s assembly conditions
(1) Offers are only considered to be accepted if unoTech GmbH accepts the offer in writing or by fax. The quantity, quality and characteristic features of the system are as indicated in the offer/order confirmation itself or by reference to distinct system and price lists.
(2) unoTech GmbH’s offers are non-binding and subject to change. Models, samples or details (such as weights, illustrations, descriptions etc.) in model books, price lists or other publications show the quality of the system as clearly as possible. In the event of deviations from the offer, the descriptions of services of the last offer or the last order confirmation are always authoritative.
(3) unoTech GmbH reserves the right to alter descriptions of the goods with regard to the described characteristic features of the goods, to take current legal requirements into account.
(4) Agreements on quantities or quality specifications that deviate from the performance descriptions for the systems or services will only be binding if they have been confirmed in writing. The same applies to supplier and unoTech GmbH’s employee details. Cost proposals and freight details will not be binding until they have been confirmed in writing by unoTech GmbH.
(5) Details concerning the condition of systems and services are not guarantees. Guarantees must be expressly referred to as such.
§3 Safety Regulations
(1) The safety-related design of the machines will conform – where relevant – to the implementing provisions of the EC Machinery Directive. Other certifications or customer requirements going beyond these must be agreed separately.
(2) For electrical or electronic installations, the general terms and conditions for the electrical industry’s products and services in the Federal Republic of Germany will apply. The machines’ electrical equipment conforms to the implementing provisions of the EC Low Voltage Directive as well as the European Standard EN 60204-1, “Electrical Equipment on Machinery” will apply. Additionally, the electrical equipment conforms to the requirements of the Directive on Electro-Magnetic Tolerance.
(3) If the place of assembly is outside of Germany, the customer shall be responsible for compliance with the public law regulations that apply to commissioning and operation as well as waste disposal for the system in the destination country. Deviations must be agreed separately.
§4 Scope of Services
(1) A description of services as well as functional and maintenance instructions for the system can be found in the offer.
(2) The system is responsible for providing certain technical functions. The achievement of the customer's business objectives is not owed.
(3) The delivery will generally be made “ex works”, i.e. with the provision of the machine at unoTech GmbH’s registered office or the indicated production site. If unoTech GmbH is expected to perform the delivery of the machine to the final destination indicated by the customer, this must be agreed separately.
(4) unoTech GmbH expressly reserves the right to make partial deliveries if the customer may reasonably be expected to take a partial delivery in accordance with the purpose of the Contract and if the partial delivery can be used technically and functionally independently of the other parts.
(5) The commissioning of the machine will be effected by unoTech GmbH’s employees. They will provide a brief training session on the safety aspects and the operation of the machine for the customer’s personnel. Extended training courses and training sessions will only be delivered by unoTech GmbH’s employees if this is expressly contractually agreed. Supervision of production is not included in the scope of extended training courses and training sessions.
(6) At the time the contract is concluded, the customer is aware that unoTech GmbH only checks and guarantees the self-sufficient functionality of the devices supplied by unoTech GmbH, without the functionality of the devices being guaranteed in a systemic combination with other components. The customer shall be responsible for the compatibility of the function itself or may separately commission unoTech GmbH to check system compatibility. Subject to separate agreements, unoTech GmbH does not bear any system responsibility.
(7) The proper operation of the machine is only warranted if unoTech GmbH’s instructions on the (commissioning/operation/maintenance), contained in the description, are complied with by the customer. If the customer deviates from these instructions, they must prove that any possible defect is not caused by the deviation.
§5 Customer’s duties to cooperate in the commissioning of the machine
(1) The required auxiliary and training staff members must be provided by the customer for this purpose. The customer will also make the necessary energies, packaging and other materials or infeeds available in good time.
(2) The customer must perform the duties to cooperate presented and indicated in the offer or in the annexes to the offer completely and in good time. The duties to cooperate indicated in the annex are principal performance obligations. unoTech GmbH will inform the customer without undue delay when it is evident that a service incumbent on unoTech GmbH cannot be performed in good time as a result of the customer’s improper performance of a duty to cooperate.
(3) The delivery period shall be extended by the period until unoTech GmbH has received documents to be procured by the customer, such as, and especially approvals and releases.
(4) unoTech GmbH may make its own service dependent on the payment of an appropriate advance payment. Until receipt of this advanced payment, unoTech GmbH reserves the right to object.
(1) Delivery by unoTech GmbH will be subject to unoTech GmbH itself being supplied correctly and in good time, and unoTech will not be liable for the lack of availability of the system or individual parts. The customer may only claim damages for non-performance after the issuance and expiry of a grace period with a threat of refusal.
(2) In the event of delivery delays due to force majeure, interventions by sovereign states, natural catastrophes, war, riots, strikes in own operations, suppliers’ operations or at freight forwarders or due to other circumstances outside of unoTech GmbH’s sphere of responsibility, unoTech GmbH is entitled to make delivery after the cessation of the grounds for the hindrance. However, both Parties may withdraw from a concluded Contract in whole or in part if one of the events listed above leads to a delay in delivery of more than two months beyond the agreed period. The Contractual Parties’ further claims are excluded.
(3) The delivery will be made by the system being provided to the customer at the place indicated in the agreement. The delivery period shall be deemed to have been observed if the system has left the factory by the expiry of the agreed period or readiness for dispatch has been notified.
(4) If a different place of delivery is agreed, the system will be made available to the customer at this place. If unoTech GmbH does not deliver in good time, the customer must set unoTech GmbH a grace period in writing. After the expiry of this period without result, the customer may claim damages instead of the service and give notice of termination of the Contract.
(5) In these cases unoTech GmbH will put the system into storage at the customer’s expense and risk. At the customer’s request, unoTech GmbH will insure the system during the delay in acceptance.
(6) The term of delivery shall be extended appropriately in the event of measures in the context of labour disputes, in particular strike and lockout as well as of unforeseen impediments that lie outside of unoTech GmbH’s sphere of influence, if documentary evidence is provided that such impediments have a significant influence on the completion or delivery of the delivery item. Each Party has the right to terminate the Contract eight weeks after the occurrence and notification of the scheduled delivery date. unoTech GmbH will notify the customer of the start and end of such hindrances without undue delay.
(7) unoTech GmbH reserves the right to make partial deliveries if the customer may reasonably be expected to take a partial delivery in accordance with the purpose of the Contract and if the partial delivery can be used technically and functionally independently of the other parts.
(8) The customer may also withdraw from the contract if the execution of part of a delivery becomes impossible and they have a justified interest in refusing a partial delivery. If this is not the case, the customer must pay the price attributable to the partial delivery. The same will apply in the event of an impossibility for which neither Party can be held liable.
(9) If unoTech GmbH falls behind, unoTech GmbH is liable for the damages the customer incurs through the delay in an amount of 15% of the value of the goods, unless the delay is caused by intent or gross negligence, or a breach of a guarantee promise or injury to life, limb or health has occurred. This will not affect claims under the German Product Liability Act [Produkthaftungsgesetz].
§7 Transfer of risk, taking delivery, acceptance
(1) If the customer has assumed the transport, the risk of accidental deterioration will be transferred to the customer as soon as the system has been handed over to a carrier, a railway freight forwarder, the Post Office or has been provided to the customer for collection. The delivery time – unless otherwise agreed in writing – is complied with if the ordered system is ready for shipment and the customer has been notified.
(2) If unoTech GmbH assumes the transport, the risk is transferred to the customer at the latest with the dispatch of the delivery parts, including if it is a partial delivery or if unoTech GmbH has assumed other services, e.g. the shipping costs or delivery and installation.
(3) If transport is postponed as a result of circumstances for which the customer can be held liable, the risk will be transferred to the customer from the date of readiness for shipment.
§8 Installation, commissioning
(1) Unless otherwise agreed, remuneration for services performed by unoTech GmbH personnel will be calculated based on the conditions of the service that apply to said personnel, applicable at the time of performance, as well as on work performance records or service reports certified by the customer. If work performance records or service reports are not certified or not certified in good time by the customer, the bills of cost will be based on the indicated performance records. Partial invoicing is admissible.
(2) In the calculation of costs for repairs, the prices for parts, materials and special services, as well as prices for the work performances, travel and ancillary travel costs will be shown separately in each case. unoTech GmbH’s conditions of service will apply. unoTech GmbH will charge the ancillary costs for visas, work authorisations, packaging and tool transport etc. beyond the travel costs incurred (railway more than 200 km: 1st class, aeroplane: if possible economy class, more than 7 hours flight in business class, motor car: conditions of service). unoTech GmbH reserves the right to specify the respective means of transport. If the transit time from the accommodation to the installation site takes more than half an hour, the customer will be charged for the time incurred as normal working hours. If the execution of installation and repair work is delayed by circumstances outside of unoTech GmbH’s sphere of responsibility, the execution period will be extended accordingly. Costs incurred through the delay will be borne by the customer. This also applies in the case of a disruption of work that makes it necessary to withdraw unoTech GmbH’s personnel. All costs incurred in this context, such a waiting periods, travel costs and ancillary travel costs will be borne by the customer.
§9 Subsequent changes to the agreed services (change)
(1) If, after the conclusion of the Contract, it becomes apparent that the content of the Contract must be substantively changed in order to achieve the customer’s objectives, the Parties will have the remit to implement a “Change Management Procedure". The procedure must be implemented as follows:
- a) The customer may also request changes to the original agreement after the conclusion of the Contract, unless unoTech GmbH cannot reasonably be expected to accept these. Changes must be documented in writing. unoTech GmbH must submit an offer to the customer, indicating the realisation period, the scheduled dates and impact on the overall project.
- b) The customer may request that further work towards the completion of the system be halted until the necessary decision on the adaptation of the agreement has been finalised.
(2) Business-as-usual costs: if the agreement has errors, the customer must bear the additional costs if they would also have been incurred if the changed functional description had been agreed from the outset. In this case, unoTech GmbH will only bear the costs for the changes to the agreement and the implementing documents.
(3) All changes to the project that result from the customer wishing to change or extend the originally agreed scope of services must be separately ordered and remunerated. Appointed dates and deadlines must be coordinated in consultation with unoTech GmbH.
(1) Acceptability and the acceptance procedure will be in accordance with the specifications of the Contract.
(2) The customer is obliged to accept the installation or repair as soon as they have been notified of its completion and any contractually provided trial has been successfully concluded. If any defect is identified, that is not significant, the customer may not refuse acceptance. Upon approval, unoTech GmbH’s liability for identifiable defects will lapse, unless the customer has reserved the right to assert a certain defect.
(3) If the project consists of several parts, these will be realised, tested and accepted successively in each case. The possibility of partial acceptance will depend on whether the customer can use individual parts of the system in separate technical functions and whether they can reasonably be expected to do this in due consideration of the purpose of the Contract. The scheduled dates will be in accordance with the offer.
(4) For acceptance, both parties shall jointly perform a functional test in the environment defined in the service description. The guarantee periods begin with the acceptance of the last project part.
(5) The acceptance date is considered to be the scheduled date of the signing of the acceptance certificate by the customer. Acceptance may not be unreasonably refused. A refusal of acceptance is unreasonable in particular when the system essentially fulfils the functions described in the offer and no errors are caused that significantly impair the use of the system. The acceptance certificate must be signed by both contractual parties.
(6) Insignificant defects will be recorded in the acceptance certificate and rectified by unoTech GmbH. Acceptance is nonetheless considered to have taken place.
(7) The acceptance date is also considered to be the 10th working day after the date when the customer starts using the system, unoTech GmbH requests that the customer declare acceptance and the customer has not declared the acceptance, without indicating reasons. However, unoTech GmbH must notify the customer in writing about the consequences of their silence.
(8) If significant defects arise, unoTech GmbH is entitled to rectification of the defect by means of a number of rectification options appropriate to the scope of the project.
(1) The nature of unoTech GmbH’s activity means that prices may deviate from the original totals indicated in the offer. These are price increases that are beyond unoTech GmbH’s control and are a result of commercial practice. Price increases to the detriment of the customer may, however, only be implemented if documentary evidence is provided that demonstrate that material and staff costs have increased since the placement of the order and unoTech GmbH cannot be held liable for this. This also includes unforeseeable changes to customs charges, import and export fees, the currency exchange etc. unoTech GmbH will inform the customer without undue delay immediately after identifying the increase and set out the reasons for the price increase to the customer.
(2) Unless agreed otherwise, all prices indicated by unoTech GmbH apply “ex works”.
(3) All prices are quoted plus packaging, transport and freight insurance, plus the currently applicable VAT on the rollout date. The indicated product prices do not include any shipping, insurance and installation costs.
(4) The customer is responsible for customs clearance of the system.
(5) The customer is responsible for the payment of the corresponding public-law charges, in particular taxes.
§12 Retention of Title
(1) All deliveries are made subject to retention of title. Title to the system delivered will be transferred to the customer only upon receipt of all payments under the ongoing business relationship. The customer is entitled to process and dispose of the goods subject to retention of title in the ordinary course of business.
(2) The assertion of the right of retention is not considered to be a withdrawal from the Contract, unless unoTech GmbH informs the customer otherwise.
(3) If the system is combined, commingled, or processed with other items, unoTech GmbH will obtain joint title in proportion of the invoice value of the goods delivered to the other goods at the time of the combining, commingling, mixing, or processing. Section 947 para. 2 German Civil Code [BGB] is excluded. In the event of the customer’s conduct in breach of contract, unoTech GmbH may take back the goods subject to retention of title resp. request assignment of the claim for return of the goods against a third party and realise the system at their expense after issuing a warning notice with a reasonable deadline. The taking-back as well as the attachment of the goods subject to retention of title by unoTech GmbH does not entail a withdrawal from the Contract. This must be expressly declared.
(4) The customer has the obligation to store the goods subject to retention of title safely free of charge and keep them in the proper condition at their own expense and insure them against damages due to fire, water and theft. Pledges and transfers by way of security must be notified immediately.
(5) The customer hereby assigns the receivables from the resale or for any other legal reason (insurance/tort) regarding the goods subject to retention of title (incl. all balance claims arising on an open item basis) to unoTech GmbH by way of security in relation to the value of the goods subject to retention of title, but at most 110% of the currently outstanding receivable.
(6) In the event of attachments or other encroachments by a third party, the customer must notify unoTech GmbH, so that unoTech GmbH can bring an action in accordance with Section 771 German Code of Civil Procedure [ZPO].
(7) unoTech GmbH undertakes to release the collateral security owed to it at the customer’s request insofar as the realisable value of the collateral security exceeds the receivables owed to unoTech GmbH. The selection of the collateral security is incumbent on unoTech GmbH.
§13 Warranty for Defects
(1) The customer must inspect the system for significant defects and completeness without undue delay and declare any notices of defect to unoTech GmbH.
(2) If defects are asserted, unoTech GmbH in the first instance is entitled to undertake a reasonable number of rectification attempts within a reasonable period. After failure of the supplementary performance, the customer is entitled, in principle, at their choice, to reduce the price, withdraw from the Contract and/or request damages.
(3) In the event of insignificant defects, the right to withdraw from the Contract or assert claims for damages is excluded.
(4) The right to assert warranty claims is also excluded if the defect is caused through the use of the system in accordance with the intended purpose as a result of usual wear and tear.
(5) The customer will bear the burden of proof that unoTech GmbH can be held liable for the defect, if the defect is based on the customer having altered or improperly used or repaired products without unoTech GmbH’s consent or products not having been processed, handled and cared for in accordance with unoTech GmbH’s guidelines.
(6) The warranty period will be 12 months from delivery of the system. This also applies to claims for damages if unoTech GmbH cannot be blamed for intentional, grossly negligent conduct or claims based on injury to life, limb or health are concerned or a promise of guarantee is concerned and/or claims under the German Product Liability Act [Produkthaftungsgesetz] are affected.
(7) If the customer installs, alters or processes the system delivered by unoTech GmbH, they will bear the burden of proof that the defect was not caused by their conduct if a defect occurs.
§14 Claims for Damages
(1) unoTech GmbH is liable for negligently caused pecuniary losses restricted in terms of amount to the sum individually negotiated between the Parties. This restriction of liability does not apply to grossly negligent or intentionally caused injury to life, limb or health or the breach of a promise of guarantee. This will not affect claims under the German Product Liability Act.
(2) Claims for damages will expire by limitation within one year after they become known to the customer resp. would have had to become known if usual care had been applied. This restriction of liability does not apply to grossly negligently or intentionally caused damage, injury to life, limb or health or the breach of a promise of guarantee. This will not affect claims under the German Product Liability Act.
(3) unoTech GmbH will not bear any liability for possible system incompatibilities or associated collateral damage in the event that the system delivered by unoTech GmbH is installed, processed or integrated into other systems. If the customer wishes for unoTech GmbH to assume system responsibility, a separate order for the check must be placed regarding this.
(1) Both parties undertake to maintain the strictest secrecy with regard to all confidential processes that have come to their knowledge in the course of the activity for the other Party, in particular the other Party’s trade or business secrets and neither disclose nor commercialise these otherwise. This applies vis-à-vis any unauthorised third party, i.e. also vis-à-vis the Parties’ unauthorised employees, unless the disclosure of information contributes to the fulfilment of the contractual obligations in proper form.
(2) In cases of doubt, each Party is obliged to request the other Party’s consent prior to such disclosure.
(3) The foregoing obligations do not apply to such facts that are demonstrably common knowledge or are part of the known state of the art or already became known to the other Party before the disclosure by the customer or have been informed to unoTech GmbH by a third party who was not subject to any confidentiality obligation, once again after the disclosure by the customer.
§16 Export provisions
The products delivered or individual components under circumstances are subject to the export provisions of the export countries as well as German export provisions. Re-export from Germany may only be possible with the consent of the manufacturing country’s export control authority. Moreover, in certain cases the consent of the USA export control authority is required. The customer in the case of a re-export is responsible for compliance with the relevant provisions.
§17 Data protection
The customer has been informed in detail about the scope, location and purpose of the collection, processing and use of personal data for the collection, processing and use required for the execution of orders. They expressly consent to the collection, processing and use of the personal data described there.
§18 General provisions
(1) Should one provision of this Contract or the respective supplementary agreement be or become invalid, this will not affect the validity of this Contract in other respects.
(2) The Parties agree to apply the law of the Federal Republic of Germany with regard to all legal relationships under this contractual relationship.
(3) If the client is a merchant within the meaning of the German Commercial Code [Handelsgesetzbuch] or legal entity under public law or a special fund under public law, unoTech GmbH’s registered office is agreed to be the legal venue for all disputes that arise in connection with the implementation of this contractual relationship.
unoTech GmbH Meppen 11.2009 Management board