General terms and conditions
§ 1 Validity
(1) All deliveries, services and offers of ULMAIR GmbH & Co. KG (hereinafter referred to as "ULMAIR") are made exclusively on the basis of these General Terms and Conditions. These are an integral part of all contracts that ULMAIR concludes with its contractual partners (hereinafter also referred to as "Principal") for the deliveries or services offered by it. They also apply to all future deliveries, services or offers to the client, even if they are not separately agreed again.
(2) General terms and conditions of the customer or third parties do not apply, even if ULMAIR does not separately object to their validity in individual cases. Even if ULMAIR refers to a letter that contains or refers to the terms and conditions of business of the client or a third party, this does not constitute agreement with the validity of those terms and conditions of business.
2 Offer and conclusion of contract
(1) All offers from ULMAIR are subject to change and non-binding unless they are expressly marked as binding or contain a specific acceptance period . ULMAIR can accept orders or commissions within three weeks of receipt.
(2) The legal relationship between ULMAIR and the Customer is solely governed by the written purchase contract, including these General Terms and Conditions. This fully reflects all agreements between the contracting parties on the subject matter of the contract. Oral promises made by ULMAIR prior to the conclusion of this contract are not legally binding and oral agreements between the contracting parties are replaced by the written contract, unless it is expressly stated in each case that they continue to be binding.
(3) Additions and amendments to the agreements made, including these General Terms and Conditions of Business, must be made in writing in order to be effective. With the exception of managing directors or authorised signatories, the employees of ULMAIR are not entitled to make verbal agreements deviating from this. Transmission by telecommunication, in particular by fax or by e-mail, is sufficient to comply with the written form, provided that a copy of the signed declaration is transmitted.
(4) Details provided by ULMAIR on the object of the delivery or service (e.g. weights, dimensions, utility values, load-bearing capacity, tolerances and technical data) as well as our representations of the same (e.g. drawings and illustrations) are only approximately authoritative, unless usability for the contractually intended purpose requires exact conformity. They are not guaranteed quality features, but descriptions or identifications of the delivery or service. Deviations that are customary in the trade and deviations that occur due to legal regulations or represent technical improvements as well as the replacement of components with equivalent parts are permissible insofar as they do not impair the usability for the contractually intended purpose.
(5) ULMAIR retains ownership or copyright of all offers and cost estimates made by it 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 himself or through third parties or reproduce them without the express consent of ULMAIR. At the request of ULMAIR, he must return these items in fullto ULMAIR and destroy any copies made if they are no longer required by him in the ordinary course of business or if negotiations do not lead to the conclusion of a contract.
§ 3 Prices and payment
(1) The prices apply to the scope of services and deliveries listed in the order confirmations. Additional or special services shall be charged separately. The prices are quoted in EURO ex works plus the applicable statutory value added tax, but without packaging, transport, insurance, customs, unloading and other possible public charges.
(2) Insofar as the agreed prices are based on ULMAIR's list prices and delivery is to take place more than four months after conclusion of the contract , ULMAIR 's list prices valid at the time of delivery shall apply (in each case less any agreed percentage or fixed discount).
(3) Invoice amounts are to be paid before delivery without any deduction, unless otherwise agreed in writing . Thedate of receipt by ULMAIRis decisive for the date of payment . If the Customer fails to make payment when due, interest will be charged on the outstanding amounts from the due date at 9% above the base rate; the right to claim higher interest and further damages in the event of default remains unaffected.
(4) Offsetting against counterclaims of the Client or the retention of payments due to such claims is only permissible insofar as the counterclaims are undisputed or have been legally established.
(5) ULMAIR is entitled to make or provide outstanding deliveries or services only against advance payment or the provision of security if, after the conclusion of the contract, it becomes aware of circumstances which are likely to substantially reduce the creditworthiness of the Customer and as a result of which the payment of ULMAIR 's outstanding claims by the Customer is jeopardised.
(6) The assignment of claims against ULMAIR by the Customer to third parties is only permitted with our written consent.
§ 4 Delivery and delivery time
(1) Deliveries shall be made ex works.
(2) Deadlines and dates for deliveries and servicespromised by ULMAIR are always only approximate, unless a fixed deadline or date has been expressly promised or agreed. If shipment has been agreed, delivery periods and delivery dates refer to the time of handover to the forwarder, carrier or other third party commissioned with the transport.
(3) ULMAIR may - without prejudice to its rights arising from default on the part of the Customer - demand from the Customer an extension of delivery and performance deadlines or a postponement of delivery and performance dates by the period during which the Customer fails to meet its contractual obligations towardsULMAIR.
(4) ULMAIR is not liable for impossibility of delivery or for delays in delivery insofar as these are caused by force majeure or other events that were not foreseeable at the time of the conclusion of the contract (e.g. operational disruptions of all kinds, difficulties in the procurement of materials or energy, transport delays, strikes, lawful lockouts, shortages of labour, energy or raw materials, difficulties in obtaining the necessary official permits, official measures or the non-delivery, incorrect delivery or late delivery by suppliers) for which ULMAIR is not responsible. Insofar as such events make it considerably more difficult or impossible for ULMAIR to deliver or perform and the hindrance is not only of temporary duration, ULMAIR is entitled to withdraw from the contract. In the case of hindrances of temporary duration, the delivery or service deadlines are extended or the delivery or service deadlines are postponed by the period of the hindrance plus a reasonable start-up period of usually 14 days. Insofar as the Principal cannot reasonably be expected to accept the delivery or service as a result of the delay, he can withdraw from the contract by means of an immediate written declaration to ULMAIR.
(5) ULMAIR is only entitled to make partial deliveriesif
- the partial delivery is usable for the Customer within the framework of the contractual purpose,
- the delivery of the remaining ordered goods is guaranteed and
- the Customer does not incur any significant additional expenditure or additional costs as a result (unless ULMAIR agrees to bear these costs).
(6) If ULMAIR is in default with a delivery or service or if a delivery or service becomes impossible for it, for whatever reason , ULMAIR 's liability for damages is limited in accordance with § 8 of these General Terms and Conditions.
5 Place of performance, dispatch, packaging, transfer of risk, possible acceptance
(1) The place of performance for all obligations arising from the contractual relationship is Ulm, unless otherwise specified.
(2) The method of dispatch and the packaging are subject to the dutiful discretion of ULMAIR.
(3) The risk is transferred to the Customer at the latest when the delivery item is handed over (whereby the start of the loading process is decisive) to the forwarding agent, carrier or other third party designated to carry out the shipment. This also applies if partial deliveries are made or ULMAIR has taken on other services (e.g. dispatch or installation). If dispatch or handover is delayed as a result of a circumstance the cause of which lies with the Customer, the risk is transferred to the Customer from the day on which the delivery item is ready for dispatch and ULMAIR has notified the Customer of this.
(4) Storage costs after the transfer of risk are borne by the Customer. In the case of storage by ULMAIR, the storage costs amount to 0.25% of the invoice amount of the delivery items to be stored per expired week. Both parties to the contract reserve the right to claim and prove further or lower storage costs.
(5) The consignment will only be insuredby ULMAIR against theft, breakage, transport, fire and water damage or other insurable risks at the express request of the Customer and at his expense.
(6) Insofar as acceptance is to take place, the object of purchase is deemed to have been acceptedif
- the delivery and, insofar as ULMAIR is also responsible for the installation, the installation has been completed,
- ULMAIR has notified the Principal of this with reference to the fiction of acceptance in accordance with this § 5 (6) and has requestedacceptance,
- ten working days have elapsed since delivery or installation or the Principal has started touse the object of purchase (e.g. has put the delivered system into operation) and in this case ten working days have elapsed since delivery or installation and - the Principal has refused acceptance within this period for a reason other than a fault on the part of ULMAIR.in which case ten working days have elapsed since delivery or installation and
- the Principal has failed toaccept the goodswithin this period for a reason other than a defect notified toULMAIR which makes the use of the goods impossible or significantly impairsit.
§ 6 Warranty, material defects
(1) The warranty period shall be one year from delivery or, if acceptance is required, from acceptance.
(2) The delivered items must be carefully inspected immediately after delivery to the principal or to the third party designated by him. With regard to obvious defects or other defects that would have been recognisable in the course of an immediate, careful inspection, they are deemed to have been approved by the Customer if ULMAIR does not receive a written notice of defects from the Customer within seven working days of delivery. With regard to other defects, the delivered items are deemed to have been approved by the Customer if ULMAIR does not receive the notice of defect within seven working days of the time at which the defect became apparent; however, if the defect was already apparent to the Customer at an earlier time during normal use, this earlier time is decisive for the commencement of the period for giving notice of defect. At the request of ULMAIR, a rejected delivery item must be returned to ULMAIR carriage paid . In the event of a justified complaint , ULMAIR will reimburse the costs of the most favourable shipping route; this does not apply if the costs increase because the delivery item is located at a place other than the place of intended use.
(3) In the event of material defects in the items delivered , ULMAIR is initially obliged and entitled to rectifythe defect or to make a replacement delivery at its discretion 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 appropriately.
(4) If a defect is due to the fault of ULMAIR, the Client may claim damages under the conditions set out in § 8.
(5) In the case of defects in components from other manufacturers which ULMAIR cannot rectify for licensing or factual reasons , ULMAIR will , at its discretion, assert its warranty claims against the manufacturers and suppliers for the account of the Customer or assign them to the Customer. Warranty claims against ULMAIR exist in the case of such defects under the other conditions and in accordance with these General Terms and Conditions only if legal enforcement of the aforementioned claims against the manufacturer and supplier has been unsuccessful or is futile, for example due to insolvency. For the duration of the legal dispute, the limitation period for the relevant warranty claims of the Customer against ULMAIR is suspended.
(6) The warranty does not apply if the Customer modifies the delivery item or has it modified by a third party without the consent of ULMAIR and the rectification of the defect becomes impossible or unreasonably difficult as a result. In any case, the Customer must bear the additional costs of remedying the defect resulting from the modification.
(7) Any delivery of used items agreed with the Client in individual cases shall be made to the exclusion of any warranty for material defects.
§ 7 Property rights
(1) ULMAIR guarantees that the delivery item is free of industrial property rights or copyrights of third parties. Each contracting partner will notify the other contracting partner in writing without delay if claims are asserted against it due to the infringement of such rights.
(2) In the event that the delivery item infringes an industrial property right or copyright of a third party, ULMAIR will , at its discretion and at its expense, modify or replace the delivery item in such a way that the rights of third parties are no longer infringed, 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. If it does not succeed in doing so within a reasonable period of time, the Client shall be entitled to withdraw from the contract or to reduce the purchase price appropriately. Any claims for damages by the Client shall be subject to the limitations of § 8 of these General Terms and Conditions.
§ 8 Liability for damages due to fault
(1) ULMAIR's liability for damages, irrespective of the legal grounds, in particular due to impossibility, delay, defective or incorrect delivery, breach of contract, breach of obligations during contractual negotiations and tort, is limited in accordance with the provisions of this § 8, insofar as fault is relevant in each case.
(2) ULMAIR is not liable in the event of simple negligence on the part of its organs, legal representatives, employees or other vicarious agents, insofar as this does not involve a breach of material contractual obligations. Essential contractual obligations are the obligation to deliver and install the delivery item in good time, its freedom from defects that impair its functionality or usability more than insignificantly, as well as advisory, protective and custodial obligations that are intended to enable the client to use the delivery item in accordance with the contract or are intended to protect the life or limb of the client's personnel or to protect the client's property from considerable damage.
(3) Insofar as ULMAIR is liable on the merits for damages in accordance with § 8 (2), this liability is limited to damages which ULMAIR foresaw as a possible consequence of a breach of contract at the time of the conclusion of the contract or which it should have foreseen by exercising due care. Indirect damage and consequential damage resulting from defects in the delivery item are also only eligible for compensation insofar as such damage is typically to be expected when the delivery item is used as intended.
(4) In the event of liability for simple negligence , ULMAIR's liability to pay compensation for damage to property and further financial losses resulting therefrom is limited to an amount of EUR 2 million per case of damage, even if this involves a breach of material contractual obligations.
(5) The above exclusions and limitations of liability apply to the same extent in favour of the organs, legal representatives, employees and other vicarious agents of ULMAIR.
(6) Insofar as ULMAIR 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 it, this is done free of charge and to the exclusion of any liability.
(7) The limitations of this § 8 do not apply to ULMAIR's liability for intentional conduct, for guaranteed characteristics, for injury to life, body or health or under the Product Liability Act.
§ 9 Retention of title
(1) The retention of title agreed below serves to secure all respective existing current and future claims of ULMAIR against the Customer arising from the entire business relationship existing between the contracting parties.
(2) The goods delivered by ULMAIR to the Customer remain the property of ULMAIR until full payment of all secured claims . These goods are hereinafter referred to as "goods subject to retention of title".
(3) The Customer stores the goods subject to retention of title free of charge for ULMAIR.
(4) The client is entitled to process and sell the goods subject to retention of title in the ordinary course of business until the event of realisation (paragraph 8). Pledges and transfers by way of security are not permitted.
(5) In the event of resale of the goods subject to retention of title, the Customer hereby assigns to ULMAIR by way of security the resulting claim against the purchaser - in the event of co- ownership by ULMAIR of the goods subject to retention of title, in proportion to the co-ownership share . ULMAIR hereby accepts this assignment. The same applies to other claims which take the place of the reserved goods or otherwise arise in respect of the reserved goods, such as insurance claims or claims in tort in the event of loss or destruction. ULMAIR revocably authorises the Customer to collect the claims assigned to ULMAIR in its own name . ULMAIR may only revoke this collection authorisation in the event of realisation.
(6) If third parties gain access to the goods subject to retention of title, in particular through seizure, the principal will immediately inform them of ULMAIR's ownership and inform ULMAIR of this in order to enable it to enforce its ownership rights. If the third party is not in a position to reimburse ULMAIR for the court or out-of-court costs incurred in this connection, the Customer is liable to ULMAIR for this .
(7) ULMAIR will release the goods subject to retention of title and the items or claims replacing them insofar as their value exceeds the amount of the secured claims by more than 50%. The choice of the items to be released thereafter lies with ULMAIR.
(8) If ULMAIR withdraws from the contract in the event of a breach of contract by the Customer - in particular default of payment - it is entitled to demand the return of the goods subject to retention of title from the Customer and/or to revoke the direct debit authorisation granted.
§ 10 Final provisions
(1) If the Client is a merchant, a legal entity under public law or a special fund under public law or if he has no general place of jurisdiction in the Federal Republic of Germany, the place of jurisdiction for any disputes arising from the business relationship between ULMAIR and the Client is Ulm. Mandatory statutory provisions on exclusive places of jurisdiction remain unaffected by this provision.
(2) The relations between ULMAIR and the Client are exclusively subject to the law of the Federal Republic of Germany. The United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG) does not apply.
(3) Should individual provisions of these GTC be or become invalid, the legal validity of the remaining provisions shall remain unaffected.
(4) Insofar as the contract or these General Terms and Conditions contain loopholes, those legally effective provisions shall be deemed agreed to fill these loopholes which the contracting parties would have agreed in accordance with the economic objectives of the contract and the purpose of these General Terms and Conditions if they had known about the loophole.
(5) The Client acknowledges that ULMAIR collects and stores data from the contractual relationship for the purpose of the proper performance of the same in accordance with § 28 of the Federal Data Protection Act and reserves the right to transmit the data to third parties (e.g. insurance companies) to the extent necessary for the performance ofthe contract.