Standard Contract Terms of UWT GmbH
The following terms and conditions of UWT GmbH (hereinafter “UWT” or “we”) shall apply to all offerings, services, sales and deliveries, unless otherwise agreed in writing. They shall also apply to all future business relationships, even if they are not expressly agreed upon once again. The customer’s contract terms shall only apply if we have provided our written consent. Cancellation of this or any other written form requirement set forth in these contract terms must be in written form, in order to be valid.
1. Our offers are non-binding, unless we expressly submit a written declaration to the contrary. Contracts are accepted exclusively by means of our written confirmation (order confirmation). Contracts concluded by means of our confirmation cannot be cancelled without our consent. Technical modifications subsequently requested by the customer shall entitle us to a price adjustment based on any increased expenditure thereby incurred.
Technical data, illustrations, drawings, specifications as to weights and measurements shall only be binding if this is confirmed in writing. Design modifications remain reserved. Statements made in our brochures and instructions for use do not constitute agreements as to condition. The Buyer is solely responsible for establishing the suitability of our product for the application desired.
2. Delivery dates are not binding, unless we confirm them in writing. If the Buyer’s cooperation is required for contractual performance, then the delivery deadline period shall not begin until such cooperation is rendered by the Buyer, such as, for example the receipt of documents required from Buyer, or any agreed down payment. If delivery ex factory has been agreed upon, the delivery deadline is deemed to have been satisfied if the merchandise is readied for pickup by the deadline.
3. Force majeure, business disruptions, strikes or other obstructions for which we are not responsible that we or our suppliers experience, shall result in a release from the obligation to deliver the goods for the duration of the disruption and the effects thereof. We shall immediately notify the customer of such a case. If the hindering circumstances persist one month after expiration of the agreed delivery period, then either party can withdraw from the contract. Any other claims arising from failure to comply with the delivery deadline due to circumstances beyond our control are excluded.
4. At our discretion, we shall choose the safest and most cost-effective shipping solution, unless a specific shipping method has been agreed. Delivery will be made ex factory, unless otherwise agreed in writing.
5. If delivery ex factory has been agreed, the risk shall pass to the customer as soon as we have transferred the goods to the custody of the carrier or made them available to the customer. If shipping is delayed due to circumstances attributed to Buyer, the risk shall pass to the customer upon notification that the goods are ready for shipping. In such case the goods shall be stored at the customer‘s expense and risk; the customer shall be charged for storage on our premises at the rate of at least 0.5% of the invoice amount of the stored deliverable goods. The customer shall be free to prove that no damage occurred or that the damage is substantially less. Further compensatory damage claims by UWT remain unaffected.
The customer is obliged to accept delivery. We shall be entitled to claim damages as provided by law upon failure to accept delivered goods.
6. Unless otherwise agreed in individual cases, our prices are quoted ex factory and are understood to be exclusive of packing and freight charges, etc., and shall be subject to the value added tax assessed at the time of delivery. For orders in which, at Buyer‘s request, delivery by us is anticipated to be longer than 4 months after contract close, the list price in effect on the date of delivery will be charged.
7. All invoices are payable net within 30 days following the date shown on the invoice. We shall grant a cash discount of two percent (2%) on payments received within ten days from the invoice date. Payments shall only be considered to have been made to the extent that we are able to freely dispose of them at a bank. Checks and bills of exchange are only accepted on account;
discounting and fees shall be charged to the customer.
In the case of default, we shall be entitled to charge interest at a rate of eight percent (8%) above the base interest rate. Further compensatory damage claims by UWT shall remain unaffected. If legitimate doubts arise over the customer‘s solvency, we shall be entitled to demand prepayment or the furnishing of security. In addition, we shall be entitled, at our discretion, to rescind all existing contracts, or make our accounts receivable immediately due and payable. The same shall apply in the event that a petition is filed for the opening of an insolvency proceeding concerning the customer’s assets. The customer shall only be entitled to offset its claims against ours if its claims are undisputed, acknowledged by us or established by final judgment. The customer shall only have rights of retention if its counterclaims are established by final judgment, undisputed or acknowledged by us.
8. We shall retain ownership of the delivered merchandise until the customer has settled all our claims, including ancillary claims, arising from the underlying business relationship with us.
Processing and manufacturing activities will be carried out for us as manufacturer without obligation. Creating new goods by processing our goods in combination with others will constitute a co-ownership of the new product equivalent to the invoice amount of the reserved goods in relation to the invoice amount of the other materials.
The customer is only entitled to dispose of reserved goods in the ordinary course of business. It is not entitled to pledge them or assign them as collateral. It must notify us immediately of any seizures by a third party.
At our request, it must insure the reserved goods against loss or damage at its own expense; it hereby assigns to us in advance any claim under the insurance policies. As security, customer assigns to us in advance its rights to resale of retained goods equal to our proprietary share in the goods sold.
The customer is entitled to collect accounts receivable as long as it fulfils its payment obligations to us.
If it appears to us that the realization of our claims might be endangered, the customer shall, at our request, enable us to take back the retained goods, notify its customers of the claim assignment and provide us with all the necessary information and documentation. We are entitled to disclose the assignment to its customers. Taking back reserved goods does not constitute a cancellation of the contract. If the value of the collateral exceeds our claims by more than 20%, we shall, upon the customer‘s request, release collateral of our choice.
Property rights and copyrights pertaining to our drawings and other documentation shall rest with us in any case. They may not be disclosed to third parties.
9. Documentation shall be attached to each device at no charge; if the customer orders more than one copy, the costs thus incurred will be billed.
10. a) With regard to material defects, the customer shall initially bear the statutory responsibility to inspect and provide notification of defects set forth in § 377 HGB [German Commercial Code]. The defect complaint must be asserted in writing. The customer must complain of obvious defects (quantity, identity and packaging damage, etc.) promptly in writing, by no later than seven (7) business days from receipt of the merchandise. The customer must complain of other defects in writing promptly after such defects are discovered. The date of receipt of complaint by UWT shall prevail in the determination of timeliness. Defect claims by the customer shall be barred in the event of untimely defect complaints.
b) The customer cannot derive any further rights from materials that do not impair, or only insubstantially impair, the value and fitness of the goods for the recognisable use.
c) If the goods manifest a material defect at the time of transfer of risk, we shall be entitled and obliged to supplemental performance. Supplemental performance shall, at our discretion, be carried out by means of remedial performance or substitute delivery. The costs of the subsequent performance, particularly transport, travelling, working and material costs, shall be charged to us. If they make up more than 50% of the value of the delivery, we shall be entitled to reject subsequent performance.
Additional rights remain unaffected.
d) If the remedial performance we select fails or if remedial performance is unreasonable to the customer or refused by us or if it is delayed beyond a reasonable time period for reasons attributed to us, then the customer can rescind the contract or reduce the purchase price – without prejudice to any compensatory damage claims.
e) The provisions of sec. 13 shall also apply if the defect claims are aimed at compensatory damages or compensation of unsuccessful expenditures.
11. Compensatory damage claims against UWT or its employees, regardless of the legal ground from which such claims arise, shall be barred, unless otherwise agreed below.
UWT shall only be liable for compensatory damages and compensation of wasted expenditures in accordance with §§ 437 no. 3 or 634 no. 4 BGB in conjunction with §§ 636, 280, 281, 283 and 311 a or in accordance with § 284 BGB (hereinafter “compensatory damages”) concerning breach of contractual or extra-contractual duties
i. in the event of intentional or grossly negligent conduct,
ii. in the event of negligent or intentional injury to life, limb or health,
iii. concerning any assumption of a guarantee as to condition,
iv. in the event of negligent or intentional breach of substantial contractual duties,
v. on the basis of mandatory liability in accordance with the Product Liability Act, or
vi. on the basis of other mandatory liability.
However, compensatory damages for the breach of substantial contractual duties shall be limited to contractually typical foreseeable damage, unless intentional or grossly negligent conduct is present or liability exists due to injury to life, limb or health or the assumption of a guarantee as to condition.
UWT’s liability for lost profit, lost production, production interruptions and/or other financial damage of the customer shall be barred, unless intentional or grossly negligent conduct is present or liability exists due to injury to life, limb or health or the assumption of a guarantee as to condition.
The foregoing provisions shall not entail a shifting of the burden of proof to the detriment of the customer.
In the event of a breach of a pre-contractual obligation or in the event a barrier to performance already in existence at the time of conclusion of the contract (§§ 311 II, 311a, German Civil Code), our obligation to damages shall be limited to the negative interest.
To the extent that liability is barred or limited, this shall also apply to the personal liability of our salaried, non-salaried and contract employees, representatives and vicarious agents.
The limitations period for defect claims shall be one year from the transfer of risk. This shall not apply if the statute prescribes longer limitations periods under § 438 par. 1 no. 2 BGB (structures and property for structures), § 479 par. 1 BGB (recourse claim) or § 634 a par. 1 no. 2 BGB (construction defect). The statutory provisions shall also apply to the limitation of actions with respect to possible compensatory damage claims on the part of the customer concerning defects if we are guilty of intentional or grossly negligent conduct or if the compensatory damage claim is based on an injury to life, limb or health.
12. The statutory limitation of actions shall continue to apply to claims from the Product Liability Act.
13. If samples, drafts, plans, drawings or other technical information are required from a customer, UWT undertakes to keep them secret and shall not, without special consent, use them for other purposes or make them accessible to third parties or the general public and shall use them for the designated purpose only.
14. The customer promises to maintain confidentiality if it receives drawings, plans, samples or other technical information from us. It shall not use them for other purposes or make them available to third parties. In the event of contravention, the customer shall be obligated to compensate the resulting damage for UWT. No duty of confidentiality shall apply if the information is publicly known, becomes publicly known without breach of this duty of confidentiality or the customer has lawfully received the information from a third party for free use and without a duty of confidentiality.
15. The place of jurisdiction is Kempten, if the contractual partner is a Kaufmann [statutory “businessperson”] or a public entity or public investment fund. UWT shall also be entitled to sue the customer at its permanent or habitual place of residence or domicile. German law shall apply exclusively to all contracts under exclusion of UN Convention on Contracts for the International Sale of Goods and the conflict-of-laws rules of International Private Law.
16. If a provision of these terms is or becomes void or invalid, this shall not affect the validity of the other provisions.
Betzigau, March 2008
UWT GmbH
Westendstr. 5
87488 Betzigau
Germany
Tel. +49 (0) 831 57123-0
Fax +49 (0) 831 76879
E-mail: info(at)uwt.de
Kempten Municipal Court
HRB 754
VAT ID no.: DE 128800611
General Managers: Peter Schropp, Uwe Niekrawietz