General Conditions of Sale of UBC Composites GmbH
§ 1 Scope of application, form
(1) These General Terms and Conditions of Sale ("GTC") apply to all our business relationships with our customers ("Buyers"). The GTC shall only apply if the Buyer is an entrepreneur (§ 14 BGB), a legal entity under public law or a special fund under public law.
(2) The GTC apply in particular to contracts for the sale and/or delivery of movable goods ("Products"), regardless of whether we manufacture the Products ourselves or purchase them from suppliers (§§ 433, 650 BGB). Unless otherwise agreed, the GTC in the version valid at the time of the Buyer's order or in any case in the version last communicated to him in text form shall also apply to similar future contracts, without us having to refer to them again in each individual case.
(3) Our GTC apply exclusively. Deviating, conflicting or supplementary general terms and conditions of the Buyer shall only become part of the contract if and to the extent that we have expressly agreed to their validity in writing. This consent requirement applies in any case, for example even if the Buyer refers to his general terms and conditions in the context of the order and we do not expressly object to this.
(4) Individual agreements (e.g. framework supply contracts, quality assurance agreements) and information in our order confirmation take precedence over the GTC. In case of doubt, commercial clauses are to be interpreted in accordance with the Incoterms® issued by the International Chamber of Commerce in Paris (ICC) in the version valid at the time of conclusion of the contract.
(5) Legally relevant declarations and notifications of the Buyer with regard to the contract (e.g. setting of a deadline, notification of defects, withdrawal or reduction) must be submitted in writing. Written form within the meaning of these GTC includes written and text form (e.g. letter, e-mail, fax). Statutory formal requirements and further evidence, in particular in the event of doubts about the legitimacy of the declarant, remain unaffected.
(6) References to the validity of statutory provisions have only a clarifying meaning. Therefore, even without such clarification, the statutory provisions shall apply insofar as they are not directly amended or expressly excluded in these GTC.
§ 2 Conclusion of contract
(1) We shall be bound by our written offers for 14 days from the date of the offer. Unless otherwise stated in the offer, our catalogues, technical documentation (e.g. drawings, plans, calculations, calculations, references to DIN standards), other product descriptions or documents – also in electronic form – are non-binding and we expressly reserve our property rights and copyrights.
(2) The order of the Products by the Buyer is considered a binding contract offer. Unless otherwise stated in the order, we are entitled to accept this contract offer within 10 (ten) days of its receipt by us.
(3) Acceptance can be declared either in writing (e.g.. by order confirmation) or by delivery of the Products to the Buyer.
§ 3 Delivery period and delay in delivery
(1) The delivery period is agreed individually or specified by us upon acceptance of the order. If this is not the case, the delivery period is approximately 12 (twelve) weeks from the conclusion of the contract.
(2) If we are unable to meet binding delivery deadlines for reasons for which we are not responsible (unavailability of the service), we will inform the Buyer immediately and at the same time inform the expected new delivery period. If the service is also not available within the new delivery period, we are entitled to withdraw from the contract in whole or in part; we will immediately reimburse any consideration already provided by the Buyer. Non-availability of the service exists, for example, in the event of late self-delivery by our supplier, if we have concluded a congruent hedging transaction, in the event of other disruptions in the supply chain or if we are not obliged to procure in individual cases. The cases of Force Majeure are regulated separately in § 4 below.
(3) The rights of the Buyer according to § 8 of these GTC and our statutory rights, in particular in the event of an exclusion of the obligation to perform (e.B. due to impossibility or unreasonableness of the service and/or subsequent performance), remain unaffected.
§ 4 Force Majeure
(1) Neither the Buyer nor the Seller shall be in default or breach its contractual obligations if the fulfilment of these obligations is prevented or made more difficult by events of Force Majeure (as defined below). This also applies if the event of Force Majeure occurs at a time when a contractual partner is already in default with the fulfilment of its contractual obligations.
"Force majeure" means circumstances beyond the control of a contractual partner and also include natural disasters, fire, flood, sanctions, embargo, strike and lockout, state or sovereign restrictions, virus and other attacks by third parties (such as hacker attacks) on IT systems, late or proper delivery, acts or omissions of civil or military authorities (in particular currency restrictions, revocation or suspension of export or import permits), war, sabotage, terrorism or disruption of supply chains by epidemics and pandemic events, even if these circumstances occur at a supplier, vicarious agent or affiliated company.
(2) The contractual partner disabled by Force Majeure shall notify the other contractual partner immediately in writing of the occurrence of Force Majeure. Any deadlines and deadlines shall be extended by the duration of the Force Majeure, including a reasonable period of time for the resumption of production and deliveries.
(3) If a contractual partner is prevented from fulfilling contractual obligations for more than 6 consecutive months due to one or more events of Force Majeure, each contractual partner is entitled to withdraw from the contract with regard to the part of the contractual object not yet provided without being entitled to compensation. However, each contractual partner is entitled to remuneration for the part of the subject matter of the contract previously provided by him.
§ 5 Delivery, transfer of risk, acceptance, default of acceptance
(1) Delivery takes place from our warehouse in Murr, where the place of performance for the delivery and any subsequent performance is also located. At the request and expense of the Buyer, the Products will be shipped to another destination (shipment purchase). Unless otherwise agreed, we are entitled to determine the type of shipment (in particular transport company, shipping route, packaging) ourselves.
(2) The risk of accidental loss and accidental deterioration of the Products shall pass to the Buyer at the latest upon handover. In the case of a shipment purchase, however, the risk of accidental loss and accidental deterioration of the Products as well as the risk of delay shall pass to the forwarder, the carrier or the person or institution otherwise designated to carry out the shipment upon delivery of the Products. Insofar as acceptance has been agreed, this shall be decisive for the transfer of risk. In all other respects, too, the statutory provisions of the law on contracts for work and services shall apply accordingly to an agreed acceptance. The handover or acceptance is the same if the Buyer is in default of acceptance.
(3) If the Buyer is in default of acceptance, if he fails to cooperate or if our delivery is delayed for other reasons for which the Buyer is responsible, we are entitled to demand compensation for the resulting damage, including additional expenses (e.B. storage costs). For this purpose, we charge a lump-sum compensation in the amount of 250.- EUR per calendar day, starting with the delivery period or – in the absence of a delivery period – with the notification of the readiness for dispatch of the Products.
The proof of higher damages and our statutory claims (in particular compensation for additional expenses, appropriate compensation, termination) remain unaffected; however, the lump sum is to be offset against further monetary claims. The Buyer is permitted to prove that we have incurred no damage at all or only a significantly lower damage than the above lump sum.
§ 6 Prices and terms of payment
(1) Unless otherwise agreed in individual cases, our current prices at the time of conclusion of the contract shall apply, ex warehouse, plus the applicable statutory value added tax.
(2) In the case of a shipment purchase (§ 5 (1)), the Buyer shall bear the transport costs ex warehouse and the costs of any transport insurance requested by the Buyer. Unless we invoice the transport costs actually incurred in individual cases, a reasonable transport cost lump sum (excluding transport insurance) shall be deemed to have been agreed. Any customs duties, fees, taxes and other public charges shall be borne by the Buyer.
(3) The purchase price is due and payable within 14 days of invoicing and delivery or acceptance of the Products. However, even in the context of an ongoing business relationship, we are entitled at any time to carry out a delivery in whole or in part only against advance payment. We declare a corresponding reservation at the latest with the order confirmation.
(4) Upon expiry of the above payment period, the Buyer shall be in default. The purchase price shall bear interest during the delay at the applicable statutory default interest rate. We reserve the right to assert further damage caused by default. With regard to merchants, our claim to the commercial maturity interest (§ 353 HGB) remains unaffected.
(5) The Buyer is only entitled to set-off or retention rights to the extent that his claim has been legally established or is undisputed. In the event of defects in the delivery, the Buyer's counter-rights shall remain unaffected, in particular in accordance with § 8 (6) sentence 2 of these GTC.
(6) If, after conclusion of the contract, it becomes apparent (e.g. by filing for the opening of insolvency proceedings) that our claim to the purchase price is endangered by the Buyer's inability to pay, we are entitled to refuse performance in accordance with the statutory provisions and – if necessary after setting a deadline – to withdraw from the contract (§ 321 BGB). In the case of contracts for the manufacture of unjustifiable items (custom-made Products), we can declare withdrawal immediately; the statutory provisions on the dispensability of setting a deadline remain unaffected.
§ 7 Retention of title
(1) Until full payment of all our current and future claims from the purchase contract and the current business relationship (secured claims), we reserve title to the Products sold.
(2) The Products subject to retention of title may neither be pledged to third parties nor assigned as security before full payment of the secured claims. The Buyer must notify us immediately in writing if an application for the opening of insolvency proceedings is filed or if third parties (e.g. seizures) access the Products belonging to us.
(3) In the event of breach of contract by the Buyer, in particular in the event of non-payment of the purchase price due, we are entitled to withdraw from the contract in accordance with the statutory provisions and/or to demand the return of the Products on the basis of the retention of title. The request for surrender does not at the same time include the declaration of withdrawal; rather, we are entitled to demand only the Products and to reserve the right to withdraw from the contract. If the Buyer does not pay the purchase price due, we may only assert these rights if we have previously set the Buyer a reasonable deadline for payment without success or if such a deadline is dispensable according to the statutory provisions.
(4) The Buyer is entitled to resell and/or process the Products subject to retention of title in the ordinary course of business until revoked in accordance with (c) below. In this case, the following provisions shall apply in addition.
(a) The retention of title extends to the Products resulting from the processing, mixing or combination of our Products at their full value, whereby we are considered the manufacturer. If, in the event of processing, mixing or combination with third-party products, their right of ownership remains, we shall acquire co-ownership in proportion to the invoice values of the processed, mixed or combined products. In all other respects, the same shall apply to the resulting product as to the Products delivered under retention of title.
(b) The Buyer hereby assigns to us as security the claims against third parties arising from the resale of the Products or the Product in total or in the amount of our possible co-ownership share in accordance with the preceding paragraph. We hereby accept the assignment. The obligations of the Buyer referred to in paragraph 2 shall also apply with regard to the assigned claims.
(c) In addition to us, the Buyer remains authorized to collect the claim. We undertake not to collect the claim as long as the Buyer meets his payment obligations to us, there is no defect in his ability to pay and we do not assert the retention of title by exercising a right pursuant to paragraph 3. However, if this is the case, we can demand that the Buyer informs us of the assigned claims and their debtors, provides all information necessary for collection, hands over the associated documents and notifies the debtors (third parties) of the assignment. In addition, in this case we are entitled to revoke the Buyer's authorization to further sell and process the Products subject to retention of title.
(d) If the realisable value of the securities exceeds our claims by more than 10%, we will release securities of our choice at the request of the Buyer.
§ 8 Claims for defects of the Buyer
(1) For the rights of the Buyer in the event of material defects and defects of title (including incorrect and short delivery as well as improper assembly/installation or defective instructions), the statutory provisions shall apply, unless otherwise specified below.
(2) The basis of our liability for defects is above all the agreement made on the quality and the assumed use of the Products (including accessories and instructions). All product descriptions and manufacturer information that are the subject of the individual contract shall be deemed to be a quality agreement in this sense. If the quality has not been agreed, it is to be assessed according to the statutory regulation whether a defect exists or not (§ 434 para. 3 BGB).
(3) In the case of Products with digital elements or other digital content, we shall only owe a provision and, if necessary, an update of the digital content if this expressly results from a quality agreement in accordance with paragraph 2. We assume no liability for public statements by the manufacturer and other third parties.
(4) In principle, we are not liable for defects that the Buyer knows at the time of conclusion of the contract or is grossly negligent (§ 442 BGB) or provides incorrect initial data/design drawings. Furthermore, the Buyer's claims for defects presuppose that he has fulfilled his statutory inspection and notification obligations (§§ 377, 381 HGB). In the case of building materials intended for incorporation or other further processing, an examination must in any case be carried out immediately before processing. If a defect becomes apparent during delivery, inspection or at any later date, we must be notified of this immediately in writing. In any case, obvious defects must be reported in writing within 3 (three) working days from delivery and defects not recognizable during the inspection within the same period from discovery. If the Buyer fails to carry out a proper inspection and/or notification of defects, our liability for the defect that is not or not reported in time or not properly reported is excluded in accordance with the statutory provisions. In the case of a product intended for installation, installation or installation, this shall also apply if the defect became apparent only after the corresponding processing as a result of the breach of one of these obligations; in this case, in particular, there are no claims of the Buyer for reimbursement of corresponding costs ("dismantling and installation costs").
(5) If the delivered item is defective, we can initially choose whether we provide supplementary performance by remedying the defect (rectification) or by delivering a defect-free item (replacement delivery). If the type of supplementary performance chosen by us is unreasonable for the Buyer in individual cases, he may reject it. Our right to refuse supplementary performance under the statutory conditions remains unaffected.
(6) We are entitled to make the subsequent performance owed dependent on the Buyer paying the purchase price due. However, the Buyer is entitled to retain a reasonable part of the purchase price in relation to the defect.
(7) The Buyer must give us the time and opportunity necessary for the subsequent performance owed, in particular to hand over the rejected Products for inspection purposes. In the event of a replacement delivery, the Buyer must return the defective item to us at our request in accordance with the statutory provisions; however, the Buyer does not have a right of return. Subsequent performance does not include the removal, removal or disinstallation of the defective item or the installation, attachment or installation of a defect-free item if we are not originally obliged to provide these Products; Claims of the Buyer for reimbursement of corresponding costs ("dismantling and installation costs") remain unaffected.
(8) We shall bear or reimburse the expenses necessary for the purpose of inspection and subsequent performance, in particular transport, travel, labor and material costs as well as any dismantling and installation costs in accordance with the statutory regulation and these GTC, if a defect actually exists. Otherwise, we may demand reimbursement from the Buyer for the costs incurred from the unjustified request to remedy the defect if the Buyer knew or negligently did not know that there was actually no defect.
(9) In urgent cases, e.g. in the event of a threat to operational safety or to avert disproportionate damage, the Buyer has the right to remedy the defect himself and to demand reimbursement from us for the objectively necessary expenses. We must be notified of such self-performance immediately, if possible in advance. The right of self-performance does not exist if we would be entitled to refuse a corresponding supplementary performance in accordance with the statutory provisions.
(10) If a reasonable period to be set by the Buyer for subsequent performance has expired unsuccessfully or is dispensable in accordance with the statutory provisions, the Buyer may withdraw from the purchase contract or reduce the purchase price in accordance with the statutory provisions. In the case of an insignificant defect, however, there is no right of withdrawal.
(11) Claims of the Buyer for damages or reimbursement of futile expenses exist even in the case of defects only in accordance with § 9 and are otherwise excluded.
§ 9 Other liability
(1) Unless otherwise stated in these GTC, including the following provisions, we shall be liable in the event of a breach of contractual and non-contractual obligations in accordance with the statutory provisions.
(2) We shall be liable for damages – regardless of the legal grounds – within the scope of fault liability in the event of intent and gross negligence. In the event of simple negligence, we shall only be liable, subject to statutory limitations of liability (e.g.. care in our own affairs, insignificant breach of duty).
(a) for damages resulting from injury to life, body or health,
(b) for damages resulting from the breach of an essential contractual obligation (obligation the fulfilment of which makes the proper execution of the contract possible in the first place and on the observance of which the contractual partner regularly relies and may rely, e.g. the proper packaging and delivery); in this case, however, our liability is limited to the compensation of the foreseeable, typically occurring damage.
(3) The limitations of liability resulting from subsection 2 above shall also apply to third parties and to breaches of duty by persons (also in their favor) whose fault we are responsible for in accordance with statutory provisions. They do not apply if a defect has been fraudulently concealed or a guarantee for the quality of the Products has been assumed and for claims of the Buyer under the Product Liability Act.
(4) Due to a breach of duty that does not consist of a defect, the Buyer can only withdraw or terminate if we are responsible for the breach of duty. A free right of termination of the Buyer (in particular according to §§ 650, 648 BGB) is excluded. In all other respects, the statutory requirements and legal consequences shall apply.
§ 10 Statute of limitations
(1) Notwithstanding § 438 para. 1, no. 3 BGB (German Civil Code), the general limitation period for claims arising from material defects and defects of title shall be one year from delivery. Insofar as acceptance has been agreed, the limitation period begins with acceptance.
(2) Other special statutory provisions on the statute of limitations (in particular § 438 para. 1 no. 1, para. 3, §§ 444, 445b BGB) also remain unaffected.
(3) For contractual and non-contractual other claims for damages of the Buyer based on a defect of the Products, a two-year limitation period applies. Claims for damages by the Buyer in accordance with § 9 (2) sentence 1 and p. 2 (a) as well as under the Product Liability Act shall become statute-barred exclusively in accordance with the statutory limitation periods.
§ 11 Choice of law and place of jurisdiction
(1) For these GTC and the contractual relationship between us and the Buyer, the substantive law of the Federal Republic of Germany shall apply exclusively to the exclusion of international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods or the international conflict of laws regulations.
(2) The exclusive international and local place of jurisdiction for all disputes arising from or on the occasion of this contractual relationship is Stuttgart. However, we are also entitled to bring an action at the place of performance of the delivery obligation in accordance with these GTC or a priority individual agreement or at the general place of jurisdiction of the Buyer. Priority statutory provisions, in particular on exclusive competences, remain unaffected.