General Terms and Conditions of Delivery and Payment of UNITRONIC GmbH for Use in Business Transactions with Entrepreneurs

Status: June 2021

§ 1 Scope, Form

1. For business relations between Unitronic GmbH (Unitronic) and Customers (Purchaser) who are entrepreneurs (sec. 14 German Civil Code), a legal entity under public law or a special fund under public law, these General Terms and Conditions of Delivery and Payment (GTC) shall apply exclusively.

2. The GTC apply in particular to contracts for the sale and/or delivery of movable items (goods), regardless of whether Unitronic manufactures the goods itself or purchases them from suppliers (sec. 433, 650 German Civil Code).

3. Unless otherwise agreed, the GTC in the version valid at the time of the order or in any case in the version last notified to the Customer in text form shall also apply as a framework agreement for similar future contracts without Unitronic having to refer to them again in each individual case.

4. These GTC apply exclusively. Deviating, conflicting or supplementary General Terms and Conditions of the Customer shall only become part of the contract if and insofar as Unitronic has expressly agreed to their validity in writing. This requirement of consent shall apply in any case, in particular also if Unitronic executes the delivery or other service (hereinafter jointly referred to as „Delivery“) to the Customer without reservation or accepts material provided or supplied by him in the knowledge of the Customer’s GTC or in the knowledge of the Customer’s wish for the GTC to apply.

5. Individual agreements made with the Purchaser in individual cases shall in any case take precedence over these GTC. For the content of such agreements, in particular for the scope of deliveries, a written contract or Unitronic’s written confirmation shall be authoritative, subject to proof to the contrary.

6. Legally relevant declarations and notifications by the Purchaser with regard to the contract, in particular setting of deadlines, notification of defects, withdrawal or reduction, must be made in writing. Written means in writing or text form. Legal formal requirements and further proof, in particular in the event of doubts about the legitimacy of the person making the declaration, shall remain unaffected.

7. References to the applicability of statutory provisions are for clarification purposes only. Even without clarification, the statutory provisions shall apply insofar as they are not directly amended or expressly excluded in these GTC.

8. The term „claims for damages“ in these GTC also includes claims for reimbursement of wasted expenses.

§ 2 Conclusion of contract, documents

1. Unitronic’s offers are non-binding and subject to change. This also applies if Unitronic has provided the Purchaser with cost estimates, technical documentation such as drawings, plans, calculations, calculations, references to DIN standards or other product descriptions or documents, also in electronic form, (documents), to which Unitronic already now reserves ownership and copyrights without restriction.

2. The documents may only be made accessible to third parties with the prior consent of Unitronic and, if the order is not placed with Unitronic, must be returned immediately at Unitronic’s request.

3. Paragraph 2 shall apply accordingly to documents of the Customer; however, Unitronic may make these accessible to third parties to whom Unitronic has transferred deliveries.

4. The order of the goods by the Purchaser is deemed to be a binding offer of contract. Unless otherwise stated in the order, Unitronic shall be entitled to accept this contractual offer for at least four weeks after its receipt by Unitronic.

5. Acceptance by Unitronic can be declared either expressly in writing or text form, for example by means of an order confirmation, or implied by the delivery of the goods to the Purchaser.

§ 3 Quantities and lots

If a total order quantity has been agreed, the Purchaser must call off the agreed batch sizes in the respective agreed period. Material for components or assemblies that have not been called off, as well as partially or completely manufactured assemblies that have not been called off at the end of the respective call-off period, can be delivered by Unitronic to the Purchaser after the end of the call-off period and invoiced to the Purchaser, unless deviating provisions are expressly agreed in writing in the course of order execution or order extension. This provision shall also apply to material procured for the fulfilment of the order and remaining at the end of the order or from the time of a technical change due to minimum purchase quantities or packaging units to be procured. Insofar as a sale to third parties or a use for own purposes or for other delivery orders is or appears to be possible, Unitronic can coordinate these possibilities with the purchaser.

§ 4 Quality assurance

1. Unitronic shall manufacture parts and/or assemblies for the Purchaser to the manufacturing and quality assurance specifications specified in Unitronic’s order confirmation.

2. Unitronic shall carefully manufacture the parts and/or assemblies in accordance with the documents provided by the Purchaser or released by the Purchaser and the specifications contained therein; functions of the assemblies desired by the Purchaser shall not constitute a quality agreement, unless otherwise agreed. If these desired functions are not achieved according to the specifications, Unitronic shall not be liable for this. This limitation does not restrict the liability in the cases of sec 11, in particular in cases of intent, gross negligence or due to injury to life, body or health.

3. Unitronic can provide the following quality assurance measures by agreement; in any case, no quality assurance measures beyond these are provided or guaranteed:

  • Visual inspection of solder joints according to IPC 610, if soldering processes are carried out.
  • Quality assurance measures according to the standards of DIN EN ISO 9001.
  • Electrical function check according to the test specifications of the Purchaser, if mutually agreed in writing.
  • The incoming goods inspection of the materials provided by the Purchaser or of materials that Unitronic obtains from third parties at the instigation of the Purchaser is limited only to transport damage, type and quantity. This inspection does not release the Purchaser as supplier of provisions or material from the Purchaser’s own duty of inspection and complaints of the Purchaser against its supplier.

4. Deliveries to the Purchaser according to agreed Customer-specific production can be insured on a trade credit basis (including the manufacturing risk). However, should the insurance cover – depending on the amount of the order commitment of the Purchaser existing with Unitronic – not be able to be adjusted or be cancelled in each case, Unitronic reserves the right to exercise the rights from sec. 8 para. 7.

§ 5 Delivery period, delay in delivery

1. The delivery period is agreed individually or stated by Unitronic in the order confirmation. Deadlines and dates for deliveries promised by Unitronic are always only approximate and are not binding, unless a fixed deadline or date has been expressly promised or expressly agreed by Unitronic. If dispatch (sale by dispatch) has been agreed, delivery periods and delivery dates refer to the time of handover to the forwarding agent, carrier or other third party commissioned with the transport. The Purchaser can request Unitronic in writing to deliver within a reasonable period of time four weeks after a non-binding delivery date has been exceeded.

2. The observance of deadlines for deliveries presupposes the timely receipt of all documents to be provided by the Purchaser, necessary approvals and releases, in particular of plans, as well as the observance of the agreed terms of payment and other obligations by the Purchaser. If these prerequisites are not fulfilled in time, the delivery periods shall be extended appropriately if Unitronic is not responsible for the delay.

3. Even if Unitronic cannot meet delivery deadlines for other reasons for which Unitronic is not responsible (non-availability of the service), the delivery deadline shall be extended appropriately, taking into account start-up times for the restart of production. Unitronic will inform the Purchaser of this after noticing the full consequences and at the same time inform him of the expected new delivery period. If the service is also not available within the new delivery period, Unitronic shall be entitled to withdraw from the contract in whole or in part, whereby Unitronic shall inform the Purchaser of the non-availability after noticing the full consequences and shall refund any consideration already paid by the Purchaser.

4. In particular, the following shall be deemed to be a case of non-availability of the service:

a) force majeure, e.g. mobilisation, war, acts of terrorism, riot, or similar events, e.g. strike, lawful lockout,

b) Virus and other attacks by third parties on Unitronic’s IT system, insofar as these occurred despite compliance with the usual care in protective measures,

c) obstacles due to German, US and other applicable national, EU or international regulations of foreign trade law or due to other circumstances for which Unitronic is not responsible, or

d) failure of suppliers to deliver to Unitronic in good time or in the proper manner (in particular failure to deliver materials on the procurement markets in good time or failure to provide free issue equipment in good time), if Unitronic has concluded a congruent hedging transaction, neither Unitronic nor Unitronic’s supplier is at fault or Unitronic is not obliged to procure in the individual case.

5. The occurrence of the delay in delivery shall otherwise be determined in accordance with the statutory provisions. In any case, however, a reminder by the Customer is required.

6. The rights of the Customer under the liability provision of these GTC and the statutory rights of Unitronic, in particular in the event of an exclusion of the obligation to perform (for example due to impossibility or unreasonableness of performance and/or subsequent performance), shall remain unaffected.

7. At Unitronic’s request, the Ordering Party shall be obliged to declare within a reasonable period of time whether it is withdrawing from the contract due to the delay in delivery or insisting on delivery.

§ 6 Delivery, Transfer of Risk, Acceptance, Default of Acceptance

1. Delivery shall be ex warehouse (of Unitronic), which is also the place of performance for the delivery and any subsequent performance.

2. At the request and expense of the Purchaser, the goods will be shipped to another destination (sale by delivery to a place other than the place of performance). Unless otherwise agreed, Unitronic is entitled to determine the type of shipment itself, in particular the transport company, shipping route and packaging. At the express written request of the Customer and at the expense and risk of the Customer, Unitronic can insure the delivery against the usual transport risks. Unitronic regularly delivers in one-way packaging, on request also in shuttle packaging. The disposal obligations according to the packaging ordinance and other relevant regulations shall be assumed by the Purchaser.

3. The risk of accidental loss and accidental deterioration of the goods shall pass to the Purchaser upon handover at the latest.

4. In the case of sale by delivery to a place other than the place of performance, the risk of accidental loss and accidental deterioration of the goods as well as the risk of delay shall already pass upon delivery of the goods to the forwarding agent, the carrier or the person or institution otherwise designated to carry out the shipment.

5. Insofar as an acceptance has been agreed, this shall be decisive for the transfer of risk. In all other respects, the statutory provisions of the law on contracts for work and services shall also apply mutatis mutandis to an agreed acceptance. The handover or acceptance shall be deemed equivalent if the Customer is in default of acceptance.

6. If the Purchaser is in default of acceptance, if he fails to cooperate or if the delivery is delayed for other reasons for which the Purchaser is responsible, Unitronic is entitled to demand compensation for the resulting damage including additional expenses, e.g. storage costs. For this purpose, Unitronic shall charge a lump-sum compensation in the amount of 0.5% of the price of the goods to be delivered per month or part thereof, but no more than a total of 5% of the price of the goods to be delivered, beginning with the delivery deadline or, in the absence of a delivery deadline, with the notification that the goods are ready for shipment.

7. The proof of a higher damage and the legal claims of Unitronic, in particular compensation for additional expenses, appropriate compensation and rights of detachment such as withdrawal and termination, shall remain unaffected; however, the lump sum shall be offset against further monetary claims. The Purchaser shall be permitted to prove that Unitronic has not incurred any damage or only significantly less damage than the aforementioned lump sum.

8. Partial deliveries are permissible insofar as they are reasonable for the Customer. A partial delivery is in any case reasonable for the Purchaser if the partial delivery is usable for the Purchaser within the scope of the contractual intended purpose, the delivery of the remaining ordered goods is ensured and the Purchaser does not incur any significant additional expenditure or additional costs as a result (unless Unitronic agrees to bear these costs).

9. The Purchaser may not refuse to accept deliveries due to insignificant defects.

§ 7 Installation and assembly

1. Unless otherwise agreed in writing, the following provisions shall apply to separately agreed installation and assembly:

2. The Purchaser shall take over and provide in good time at its own expense:

a) all earthwork, construction work and other ancillary work outside the trade, including the skilled and unskilled labour, building materials and tools required for this;

b) the commodities and materials required for assembly and commissioning, such as scaffolding, lifting gear and other devices, fuels and lubricants;

c) energy and water at the point of use including connections, heating and lighting;

d) at the assembly site, sufficiently large, suitable, dry and lockable rooms for the storage of machine parts, apparatus, materials, tools, etc. and adequate working and recreation rooms for the assembly personnel, including sanitary facilities appropriate to the circumstances; in all other respects, the Purchaser shall take the measures for the protection of the property and possessions of Unitronic and of the assembly personnel at the construction site that it would take for the protection of its own property and possessions;

e) Protective clothing and protective devices required as a result of special circumstances at the assembly site.

3. Prior to commencement of the installation and assembly work, the Customer shall provide the necessary information on the location of concealed electricity, gas and water lines or similar installations as well as the required structural data without being requested to do so.

4. Prior to the start of assembly or erection, the materials and objects required for the commencement of the work must be available at the assembly or erection site and all preparatory work must have progressed to such an extent that assembly or erection can be commenced as agreed and carried out without interruption. Access roads and the installation or assembly site must be levelled and cleared.

5. If the installation, assembly or commissioning is delayed due to circumstances for which Unitronic is not responsible, the Customer shall bear the reasonable costs for waiting time and any additional travel required by Unitronic or the assembly personnel.

6. The Purchaser shall immediately certify to Unitronic on a weekly basis the duration of the working time of the assembly personnel as well as the completion of the installation, assembly or commissioning.

7. If Unitronic demands acceptance of the delivery after completion, the Purchaser must carry this out within two weeks. Acceptance shall be deemed to have taken place if the Purchaser allows the two-week period to elapse or if the delivery has been put into use – if applicable after completion of an expressly agreed test phase.

§ 8 Prices, terms of payment and set-off

1. Unless otherwise agreed in individual cases, Unitronic’s current prices at the time of conclusion of the contract shall apply, ex works, plus statutory VAT and plus packaging and transport costs.

2. If the Purchaser provides materials, he shall deliver them to Unitronic free of charge and carriage paid.

3. In the event of an expressly agreed sale by delivery to a place other than the place of performance, the Purchaser shall bear the transport costs ex works and the costs of any transport insurance requested by the Purchaser. Insurance against damage of any kind is the responsibility of the Purchaser. Even if it is to be provided by Unitronic, it shall be deemed to have been taken out on behalf of and for the account and risk of the ordering party. Any customs duties, fees, taxes and other public charges shall be borne by the Purchaser.

4. If Unitronic has, by way of exception, expressly assumed responsibility for installation or assembly and nothing to the contrary has been agreed, the Purchaser shall bear all necessary ancillary costs such as travel and transport costs as well as allowances in addition to the agreed remuneration.

5. The purchase price and all other costs are immediately due and payable to Unitronic without deduction, unless otherwise specified by Unitronic in the offer or the order confirmation.

6. However, Unitronic is entitled at any time, also within the framework of an ongoing business relationship, to carry out a delivery in whole or in part only against advance payment. Unitronic can declare a corresponding reservation in particular in the order confirmation.

7. Upon expiry of a payment period granted by Unitronic, the Purchaser shall be in default. During the period of default, the purchase price shall be subject to interest at the applicable statutory default interest rate. Unitronic reserves the right to assert further damage caused by default. In relation to merchants, Unitronic’s claim to the commercial due date interest (sec. 353 German Commercial Code) remains unaffected. In all other respects, the statutory provisions shall apply.

8. If Unitronic and the Purchaser have concluded more than one contract and if the Purchaser is in default with the payment of an invoice, the agreed payment terms shall also lapse for all further contracts; all outstanding invoices shall then be due immediately. In such a case, Unitronic is also entitled to postpone the production and/or delivery of goods until all outstanding invoices have been settled and/or to demand advance payment. Unitronic may also, at Unitronic’s discretion, discontinue procurement and production and/or make advance payment conditional for further contracts after written notice and fruitless expiry of a grace period granted to the Purchaser; after the end of the delay, Unitronic will notify the Purchaser of new delivery dates or declare withdrawal and demand compensation for damages. The further rights of Unitronic remain unaffected.

9. The Customer shall only be entitled to rights of set-off or retention insofar as his claim has been legally established or is undisputed. In the event of defects in the delivery, the counter rights of the Customer shall remain unaffected.

10. If it becomes apparent after conclusion of the contract (e.g. through an application to open insolvency proceedings on the assets of the Customer) that Unitronic’s claim to the purchase price is endangered by the Customer’s lack of ability to pay, Unitronic shall be entitled to refuse performance in accordance with the statutory provisions – and if required by law after setting a deadline – to withdraw from the contract (sec. 321 German Civil Code). In the case of contracts for the manufacture of unjustifiable items (customised products), Unitronic can declare withdrawal immediately; the statutory regulations on the dispensability of setting a deadline remain unaffected.

§ 9 Retention of title

1. Unitronic shall retain title to the sold goods (reserved goods) until full payment of all current and future claims of Unitronic arising from the purchase contract and an ongoing business relationship (secured claims).

2. The goods subject to retention of title may neither be pledged to third parties nor assigned as security before full payment of the secured claims. The Purchaser must inform Unitronic immediately in writing if an application is made to open insolvency proceedings or if third parties (e.g. seizures, attachments) have access to the goods belonging to Unitronic. If a justified interest from Unitronic’s point of view is substantiated, the Purchaser must immediately provide Unitronic with the information required to assert its rights against the third party and hand over the necessary documents.

3. In the event of behaviour in breach of contract on the part of the Customer, in particular in the event of non-payment of the purchase price due, Unitronic shall be entitled to withdraw from the contract in accordance with the statutory provisions or/and to demand surrender of the goods on the basis of the reservation of title. The demand for return does not include the declaration of withdrawal at the same time; Unitronic is rather entitled to demand only the return of the goods and to reserve the right of withdrawal. If the Customer does not pay the due purchase price, Unitronic may only assert these rights if Unitronic has previously unsuccessfully set the Customer a reasonable deadline for payment or such a deadline is dispensable according to the statutory provisions.

4.Until revoked in accordance with 4.c) below, the Purchaser is authorised to process and/or resell the goods subject to retention of title in the ordinary course of business, on condition that the Purchaser receives payment from its customer (Orderer) or makes the reservation that title shall not pass to the Orderer until the Orderer has fulfilled its payment obligations. In cases of processing or resale by the Purchaser, the following provisions shall apply in addition:

a) The retention of title extends to the products created by processing, mixing or combining Unitronic’s goods at their full value, whereby Unitronic shall be deemed the manufacturer. In the event of processing by the Purchaser, the Purchaser shall store the new products thereby created for Unitronic with the care of a prudent businessman. If, in the case of processing, mixing or combining with goods of third parties, their ownership rights remain, Unitronic shall acquire co-ownership in the ratio of the invoice values of the processed, mixed or combined goods. In all other respects, the same shall apply to the resulting product as to the goods delivered under retention of title, in particular the resulting product shall be deemed to be Unitronic’s goods subject to retention of title.

b) The future claims against third parties arising from the resale of the goods or the product shall be assigned to Unitronic by the Purchaser here and now in total or in the amount of Unitronic’s possible co-ownership share, including all ancillary rights and claims, in accordance with the above paragraph as security, without any further declarations of intent being required. Unitronic accepts the assignment. The obligations of the Customer stated in Paragraph 2 shall also apply with regard to the assigned claims. If the goods subject to retention of title are resold together with other items without an individual price having been agreed for the goods subject to retention of title, the Purchaser shall assign to Unitronic that part of the total price claim which corresponds to the price of the goods subject to retention of title invoiced by Unitronic.

c) The Purchaser shall remain authorised to collect the claim in addition to Unitronic. Unitronic undertakes not to collect the claim as long as the Purchaser meets his payment obligations towards Unitronic, there is no deficiency in his ability to pay and Unitronic does not assert the retention of title by exercising a right in accordance with para. 3. If this is the case, however, Unitronic can demand that the Customer informs Unitronic of the assigned claims and their debtors, provides all information necessary for collection, hands over the associated documents and informs the debtors (third parties) of the assignment. In addition, Unitronic is entitled in this case to revoke the authority of the Purchaser to further sell and process the goods subject to retention of title.

d) If the realisable value of the securities exceeds Unitronic’s claims by more than 20%, Unitronic shall release securities of Unitronic’s choice at the Customer’s request.

5. In the event of good cause, in particular in the event of default in payment, cessation of payments, opening of insolvency proceedings, application for opening of insolvency proceedings, protest of a bill of exchange or justified indications of over-indebtedness or imminent insolvency of the Customer, Unitronic shall be entitled to revoke the collection authorisation of the Customer. In addition, Unitronic may, after prior warning and observance of a reasonable period of time, disclose the assignment by way of security, realise the assigned claims and demand the disclosure of the assignment by way of security by the Purchaser to the Customer.

§ 10 Claims for Defects of the Purchaser

1. The statutory provisions shall apply to the rights of the Purchaser in the event of material defects and defects of title (including wrong delivery and short delivery as well as – if agreed – improper assembly or defective assembly instructions), unless otherwise stipulated below. In all cases, the special statutory provisions shall remain unaffected in the case of final delivery of the unprocessed goods to a consumer, even if the consumer has processed them further (supplier’s recourse pursuant to sec. 478 German Civil Code). Claims from supplier recourse are excluded if the defective goods have been further processed by the Purchaser or another entrepreneur, e.g. by installation in another product.

2. The basis of Unitronic’s liability for defects is above all the agreement reached on the quality of the goods. All product descriptions and manufacturer’s specifications which are the subject of the individual contract or which were publicly announced by Unitronic (in particular in catalogues or on Unitronic’s Internet homepage) at the time of the conclusion of the contract shall be deemed to be an agreement on the quality of the goods.

3. Insofar as the quality has not been agreed, it is to be assessed according to the statutory regulation whether a defect exists or not (sec. 434 para. 1 sentence. 2 and 3 German Civil Code). However, Unitronic shall not be liable for public statements by the manufacturer or other third parties (e.g. advertising statements) to which the Purchaser has not drawn Unitronic’s attention as being decisive for the purchase.

4. Unitronic shall in principle not be liable for defects of which the Purchaser is aware at the time of conclusion of the contract or is not aware due to gross negligence (sec. 442 German Civil Code). Furthermore, the Purchaser’s claims for defects presuppose that he has fulfilled his statutory obligations to inspect and give notice of defects (sec. 377, 381 German Commercial Code). In the case of building materials and other goods intended for installation or other further processing, an inspection must in any case be carried out immediately before processing. If a defect becomes apparent during delivery, inspection or at any later time, Unitronic must be notified of this immediately in writing. If the Purchaser fails to carry out the proper inspection and/or report the defect, Unitronic’s liability for the defect not reported or not reported in time or not reported properly shall be excluded in accordance with the statutory provisions.

5. If the delivered item is defective, Unitronic may initially choose whether Unitronic shall provide subsequent performance by rectifying the defect (subsequent improvement) or by delivering an item free of defects (replacement delivery). Unitronic’s right to refuse subsequent performance under the statutory conditions remains unaffected.

6. Unitronic is entitled to make the subsequent performance owed dependent on the Purchaser paying the purchase price due. However, the Purchaser shall be entitled to retain only a reasonable part of the purchase price in relation to the defect.

7. The Purchaser shall give Unitronic the time and opportunity required for the subsequent performance owed, in particular to hand over the rejected goods for inspection purposes. In the event of a replacement delivery, the Purchaser shall return the defective item to Unitronic in accordance with the statutory provisions if Unitronic so wishes. The supplementary performance does not include the removal of the defective item or the re-installation if Unitronic was not originally obliged to install it.

8. Unitronic shall bear or reimburse the expenses required for the purpose of inspection and subsequent performance, in particular transport, travel, labour and material costs as well as, if applicable, removal and installation costs, in accordance with the statutory provisions if there is actually a defect. Otherwise Unitronic can demand reimbursement from the Purchaser of the costs incurred from the unjustified request for rectification of the defect (in particular inspection and transport costs), unless the lack of defectiveness was not recognisable for the Purchaser.

9. In urgent cases, e.g. if operational safety is endangered or to prevent disproportionate damage, the Purchaser has the right to remedy the defect himself and to demand reimbursement from Unitronic of the expenses objectively necessary for this. Unitronic must be informed immediately of such self-execution, if possible in advance. The right of self-execution does not exist if Unitronic would be entitled to refuse a corresponding subsequent performance in accordance with the statutory provisions.

10. If the supplementary performance has failed or if a reasonable deadline to be set by the Purchaser for the supplementary performance has expired unsuccessfully or is dispensable according to the statutory provisions, the Purchaser may withdraw from the purchase contract or reduce the purchase price. In the case of an insignificant defect, however, there shall be no right of withdrawal.

11. Claims of the Purchaser for damages or reimbursement of futile expenses shall also exist in the case of defects only in accordance with sec. 11 and are otherwise excluded.

12. Claims of the Purchaser for expenses incurred for the purpose of supplementary performance shall be excluded to the extent that expenses are increased because the subject-matter of the Supplies has subsequently been brought to another location than the Purchaser’s branch office, unless doing so complies with the normal use of the Supplies. This shall apply mutatis mutandis to claims for reimbursement of expenses of the Purchaser pursuant to sec. 445a of the German Civil Code (recourse of the Seller), provided that the last contract in the supply chain is not a purchase of consumer goods.

13. Recourse claims of the Purchaser against Unitronic pursuant to sec. 445a German Civil Code (recourse of the seller) shall only exist insofar as the Purchaser has not made any agreements with its Customer that go beyond the statutory claims for defects.

14. Claims for defects shall not exist in the case of only insignificant deviation from the agreed quality, in the case of only insignificant impairment of usability, in the case of natural wear and tear or damage occurring after the transfer of risk as a result of incorrect or negligent handling, excessive stress, unsuitable operating materials, defective construction work, unsuitable building ground or which arise due to particular external influences which are not assumed under the contract, as well as in the case of non-reproducible software errors. If the Purchaser or third parties carry out improper modifications, installation/removal or repair work, there shall also be no claims for defects for these and the resulting consequences.

15. Unitronic’s liability shall be limited to compliance with the incoming goods inspection in accordance with sec. 4 para. 3 in the case of defects in materials which the Purchaser delivers or provides as a supplier or which Unitronic receives from certain third parties at the instigation of the Purchaser.

§ 11 Other liability

1. Insofar as nothing to the contrary arises from these GTC including the following provisions, Unitronic shall be liable in the event of a breach of contractual and non-contractual obligations in accordance with the statutory provisions.

2. Unitronic shall be liable for damages – irrespective of the legal grounds – within the scope of fault liability in the event of intent and gross negligence. In the case of simple negligence, Unitronic is only liable, subject to legal limitations of liability (e.g. care in own affairs; insignificant breach of duty), in the following cases

a) for damages resulting from injury to life, body or health,

b) for damages arising 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); in this case, however, Unitronic’s liability shall be limited to compensation for the foreseeable, typically occurring damage.

3. The limitations of liability resulting from para. 2 shall also apply to third parties as well as in the case of breaches of duty by persons (also in their favour) whose fault Unitronic is responsible for according to statutory provisions. They shall not apply insofar as a defect was fraudulently concealed or a guarantee for the quality of the goods was assumed and for claims of the Customer under the Product Liability Act.

4. Due to a breach of duty that does not consist of a defect, the Purchaser can only withdraw or terminate if Unitronic is responsible for the breach of duty. A free right of termination of the Purchaser (in particular according to sec. 650, 648 German Civil Code) is excluded. In all other respects, the statutory prerequisites and legal consequences shall apply.

§ 12 Limitation

1. Deviating from sec. 438 (1) No. 3 of the German Civil Code, the general limitation period for claims arising from material defects and defects of title shall be one year from delivery. The same applies accordingly to the assertion of rights of withdrawal and reduction. Insofar as acceptance has been agreed, the limitation period shall begin with acceptance.

2. If the goods are a building or an object which has been used for a building in accordance with its customary use and has caused its defectiveness (building material), the limitation period shall be 5 years from delivery in accordance with the statutory regulation (sec. 438 para. 1 no. 2 German Civil Code). Other special statutory provisions on the limitation period (in particular sec. 438 para. 1 no. 1, para. 3, sec. 444, 445b BGB) shall also remain unaffected.

3. The above limitation periods of the law on sales also apply to contractual and non-contractual claims for damages of the Purchaser based on a defect of the goods, unless the application of the regular statutory limitation period (sec. 195, 199 German Civil Code) would lead to a shorter limitation period in the individual case. Claims for damages of the Purchaser pursuant to sec. 11 para. 2 sentence 1 and sentence 2(a) as well as pursuant to the Product Liability Act shall become time-barred exclusively in accordance with the statutory limitation periods.

4. For claims for reimbursement of expenses of the Purchaser pursuant to sec. 445a German Civil Code (recourse of the Seller), the limitation period shall be one year from the statutory commencement of the limitation period, provided that the last contract in the supply chain is not a purchase of consumer goods.

§ 13 Industrial property rights and copyrights, defects of title

1.  Unless otherwise agreed, Unitronic shall be obliged to provide the delivery in the country of the place of delivery without infringement of industrial property rights and copyrights of third parties (property rights). The Customer shall notify Unitronic and Unitronic shall notify the Customer in writing without delay if claims are asserted against it for the infringement of such rights.

2. If a third party asserts justified claims against the Purchaser due to the infringement of property rights to deliveries made by Unitronic and used in accordance with the contract, Unitronic shall be liable to the Purchaser within the period specified in sec. 12 as follows: 

3. Unitronic shall, 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 Purchaser by concluding a licence agreement with the third party. Only if Unitronic does not succeed in this within a reasonable period of time, the Purchaser is entitled to withdraw from the contract or to reduce the purchase price appropriately.

4. Any claims for damages of the Purchaser shall be subject to the limitations of sec. 10, 11 of these GTC. This applies in particular in the event of defects of title other than those regulated in this sec. 13. Unless otherwise provided for in this sec. 13, the provisions of sec. 10 shall otherwise apply to the claims of the Purchaser provided for in this sec. 13.

5. In the event of infringements of rights by products of other manufacturers supplied by Unitronic, Unitronic shall, at its discretion, assert its claims against the manufacturers and upstream suppliers for the account of the Customer or assign them to the Customer. Claims against Unitronic shall only exist in these cases in accordance with this sec. 13 if the judicial enforcement of the aforementioned claims against the manufacturers and upstream suppliers was unsuccessful or is futile, e.g. due to insolvency.

6. The aforementioned obligations of Unitronic shall only exist insofar as the Purchaser immediately notifies Unitronic in writing of the claims asserted by the third party, does not acknowledge an infringement and Unitronic reserves the right to all defensive measures and settlement negotiations. If the Purchaser discontinues the use of the delivery for reasons of mitigation of damages or other important reasons, he is obliged to point out to the third party that the discontinuation of use is not connected with an acknowledgement of an infringement of property rights.

7. Claims of the Purchaser are excluded insofar as he is responsible for the infringement of property rights. 

8. Claims of the Customer shall also be excluded if the infringement of property rights is caused by special specifications of the Customer, by an application not foreseeable by Unitronic or by the fact that the delivery is modified by the Customer or used together with products not supplied by Unitronic.

§ 14 Reservation of performance

1. The performance of the contract by Unitronic is subject to the proviso that there are no obstacles due to German, US-American or other applicable national, EU or international regulations of foreign trade law as well as no embargos or other sanctions.

2. The Purchaser is obliged to provide all information and documents required for the export, transfer or import.

§ 15 Impossibility and adjustment of the contract

1. Unitronic shall not be liable for impossibility of delivery or for delays in delivery insofar as these have been caused by force majeure or other events unforeseeable at the time of conclusion of the contract for which Unitronic is not responsible (e.g. events within the meaning of § 5 para. 4, 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 necessary official permits, official measures or the failure of suppliers to deliver or to deliver correctly or on time). If such events make delivery considerably more difficult or impossible for Unitronic and the hindrance is not only of temporary duration, Unitronic is entitled to withdraw from the contract. In the event of hindrances of temporary duration, the delivery periods shall be extended or the delivery dates shall be postponed by the period of the hindrance plus a reasonable start-up period. Insofar as the Customer cannot reasonably be expected to accept the delivery as a result of the delay, he may withdraw from the contract by means of an immediate written declaration to Unitronic.

2. The Purchaser’s claim for damages due to impossibility of performance shall be limited to 10 % of the value of that part of the delivery which cannot be used for its intended purpose due to the impossibility. This limitation shall not apply in the cases of sec. 11, in particular not in cases of intent, gross negligence or injury to life, body or health. This does not imply a change in the burden of proof to the detriment of the Purchaser. The right of the Customer to withdraw from the contract remains unaffected.

3. Insofar as events unforeseeable at the time of the conclusion of the contract, e.g. the events mentioned or referred to in para. 1, significantly change the economic significance or the content of the delivery or have a significant effect on Unitronic’s operations, the contract shall be adjusted appropriately in good faith. Insofar as this is not economically justifiable, Unitronic has the right to withdraw from the contract. This applies in particular if required export licences are not granted or cannot be used. If Unitronic wishes to make use of this right of withdrawal, Unitronic must inform the Purchaser of this after recognising the significance of the event, even if an extension of the delivery period was initially agreed with the Purchaser.

§ 16 Choice of law and place of jurisdiction

1. These GTC and the contractual relationship between Unitronic and the Customer shall be governed by the laws of the Federal Republic of Germany to the exclusion of international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods (CISG).

2. If the Purchaser is a merchant within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, the exclusive – also international – place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be the registered office of Unitronic in Neuss, Germany. The same shall apply if the Customer is an entrepreneur within the meaning of sec. 14 German Civil Code. However, Unitronic shall also be entitled in all cases to bring an action at the place of performance of the delivery obligation in accordance with these General Terms and Conditions or a prior individual agreement or at the general place of jurisdiction of the Customer. Overriding statutory provisions, in particular on exclusive jurisdiction, shall remain unaffected.

§ 17 Binding nature of the contract

The contract concluded between Unitronic and the Purchaser shall remain binding in its remaining parts even if individual provisions are legally ineffective. This shall not apply if adherence to the contract would represent an unreasonable hardship for one party.