As of 01.01.2017
1. These General Terms and Conditions shall be binding for all orders placed with Unger Germany GmbH (hereinafter “the Company”), except for any derogations confirmed by the Company in writing. The present General Terms and Conditions shall apply only to the direct legal relations with business customers of the Company. The Customer’s general terms and conditions shall not become part of the contract even if there is no express objection to them. Deliveries shall not be carried out before a copy of the confirmed business registration has been submitted. On placing his first order with the Company, the Customer agrees that all Company-related data including the names of the contact persons are stored as backup data to be used for the future sending of product information and contract-related communication. He commits himself to indicate immediately to the Company any changes of these data including changes or cancellations of his business registration documented on launching the business relationship. The business partner is entitled to revoke their consent for the storage of personal data at any time, as well as request information about the stored data.
2. Binding character of the Customer’s order
The order of the Customer shall be placed on the basis of product information provided by the Company including the indicated recommended retail price to its Customers less a discount rate for intermediate trade agreed upon with the respective commercial trade customers to be deducted from this recommended retail price. It shall bind the Customer for a period of four weeks from the date the order was placed. If the Customer did not receive within this period any confirmation or shipment of the ordered merchandise, he shall have the right to revoke his order with an advance notice of 3 working days (Monday-Saturday), provided that neither within this period did he receive any confirmation or shipment. Usually, a confirmation is submitted within five working days. The Customer is obligated, within a period of five working days, to check the completeness and correctness of the ordering information, the conditions, and the delivery dates indicated in the confirmation and to report any complaints in writing; otherwise, the data are deemed to comply with the contract.
3. Contract Provisions
The prices specified in the contract are prices in euros, plus value-added tax applicable at time of shipment. With regard to quantities, the packing units indicated by the Company shall be observed. The Company is entitled to confirm/ship only part of any order, i.e., in particular, it is entitled not to accept variances from packing units in orders for individual products or not to confirm/ship individual products which are out of stock.
Shipping ex works shall be arranged by the Company, but at the Customer’s risk and expense. For Customers in Germany, the minimum value of an order is EURO 250.00. Orders from a value of EURO 500.00 are shipped free of charge, but at the Customer’s risk, to Customers within Germany. The order value is the net value of the merchandise invoiced to the Customer. Shipping is always at the Customer’s risk. In the case of damages or loss of the goods at the forwarding company, it is agreed that any claims against the forwarding agent or its insurance company are assigned to the Customer who herewith consents to accept this. The order value is the net value of the merchandise invoiced to the Customer. Customers abroad shall be billed for the actual shipping cost, regardless of the order’s value. Shipping costs to be borne by the Customer shall be included in the invoice for the merchandise. Shipment shall be made as soon as possible, unless the order/confirmation provided otherwise. Partial shipments shall be allowed. If a shipment is late by 4 weeks from the date of the order and/or the agreed date, the Customer shall be entitled to rescind the contract, any further claims excluded. Rescission of the contract shall be excluded if at the time of rescission the merchandise is already underway to the Customer.
5. Terms of Payment
New Customers shall pay in advance; delivery shall take place only upon Company’s receipt of the payment prior to the confirmed delivery date. Otherwise, the order shall be cancelled by the Company. If and insofar as the Company has granted a borrowing limit in a continuous business relation, such limit shall be indicated separately on the invoice and the following shall apply with deliveries within the scope of the limit: If payment is received within 10 days from the date of invoice, a discount of 2% shall be granted. Invoices are payable net within 30 days. The date of invoice is the date of shipment. Borrowing limits may only be exceeded on the basis of separate agreements. Without such agreements, the exceeding of borrowing limits is not allowed.
Our customers shall inspect our goods within 10 days of delivery, in terms of quantity and quality. Any defects shall be reported and specified within this period. In this case, the Company shall have the right to remedy the defect or to ship a replacement within 10 days from receiving the returned merchandise. Should this right not be used by Unger after receipt of the returned merchandise, rescission of the contract is deemed declared and any further claims of the Customer shall be excluded, except for the right to a credit note/refund of the purchase price. The Customer may reject a credit note. In this case, he shall be granted a repayment. Any credit note shall be offset directly against any unsettled or future deliveries. If the purchaser is a reseller and his Customer complains during the warranty periods of the merchandise of defects which were impossible to detect by the Customer during his inspection of the incoming goods, the following shall apply vis-à-vis us: For consumables, expendables or product parts subject to mechanical/organic wear, the warranty period shall be 6 months. It shall increase by the period - to be documented to us - between the sale to the buyer and his resale, but by no more than 3 months. For all other products, the warranty period shall be 12 months. The warranty claim is limited to remedy or replacement within 20 days from receipt of the returned merchandise. If this right is not used by the Company after it has received the returned merchandise, it is deemed declared that the contract has been rescinded; any further claims by the Customer excluded, except for the right to a credit note/refund of the purchase price, and in the case of returned used products, a deduction from that price for the benefits derived from their use in the meantime. Irrespective of the warranty, we assure that expendable materials and spare parts allowing for a technically useful replacement on the products marketed by us will be made available for at least two years after delivery at the list price valid at the time these materials and parts are ordered. Usually, our stock is sufficient to cover deliveries over a period of at least five years; if our stock should lack any items, we will be able to indicate another source of supply for these items. Any return of defective merchandise must be announced to the Company before the return is effected. Merchandise returned unannounced will not be accepted and processed by the Company. The customer shall bear the shipping cost.
7. Limitation on Liability
The products come with instructions of use and warnings which must be strictly observed. If there is damage to the product or third party damage because the instructions and warnings were disregarded, the Company shall not be liable. The same shall apply in the event that the products were not used for the purposes for which they were intended according to the product information.
8. Delay in Payment
Under section 286 para. 3 BGB (German Civil Code), you are in default later than 30 days after receipt of our invoice and/or immediately after the stated due date of the mentioned claim for payment. In the case of default, the regulations stipulated in § 288 para. 5 BGB shall apply. The Customer is obliged to pay a lump sum amounting to 40.00 EURO as damage compensation for the processing of the collection of the outstanding debt. The same applies if the unpaid claim is a down payment or another type of payment by instalments. The lump sum shall be offset against the unpaid damage compensation to the extent the costs of bringing an action constitute the damage. Starting with the beginning of the default, Unger shall be under no obligation to fulfil any follow-up orders already received, or to process any additional incoming orders. If the debtor does not respond to the first dunning letter, Unger shall have recourse to the court and, based on the default in payment, request that a payment order be issued by the court under sections 688 ff. ZPO (German Code of Civil Procedure), or hand over the records to a lawyer for collection. Any unpaid claims shall bear interest amounting to ten percent above the base interest rate. Once customer receivables had to be collected with the help of a lawyer/ the court, any future deliveries, even after settlement, shall be made only against prepayment. If the customer, in case of a direct debit, has the debited amount reversed without justification, he shall bear, in addition to the aforementioned stipulations, the entire cost incurred for the debit reversal by the bank, plus a 20.00 euros processing fee.
9. Ownership of Merchandise
All shipments shall be made under extended retention of ownership (current account). Ownership shall pass to the buyer only after all outstanding claims resulting from the business relation have been settled. If the value of the merchandise with retention of ownership exceeds 50% of the outstanding claims, the Company herewith releases ownership of the merchandise for the share exceeding 50%. The release shall be effected in the order of the shipments, i.e. the oldest shipment will be released first. Pledging or transfer of ownership as a security lien is not permitted and any third party attempt of this kind to seize the merchandise shall be reported to the Company without undue delay. Within the scope of normal business, the Customer shall have the right to resell the merchandise with retention of ownership. By way of security, any resulting claims against the buyers are deemed assigned to the Company. To the extent that the Company takes back merchandise with retention of ownership, it is exercising its right of retention and shall issue an equivalent credit note. However, taking into account the loss incurred by the Company, only 75% of the price charged at shipment shall be credited. The right to assert additional damages remains reserved.
Place of performance for all goods and services arising from the business connection shall be Wuppertal unless provided otherwise above. Wuppertal shall be the exclusive venue.
11. Right of Ownership and Copyright
The Company reserves the right of ownership and the copyright to pictures, drawings, electronic media and other documents. The customers of the Company shall have the right to use pictures provided by the Company for marketing purposes. The Company reserves the right to prohibit at any time the use of pictures and logos in the designing of, e.g., catalogues and websites, in particular when these were prepared in a context which can be misunderstood or damaging. When using the Company’s picture and logo material as well as product names, certain rules must be respected. Picture material and logos may not be modified without the Company’s consent. Specific rules of corporate identity must be complied with. In the case of product names, use of the registration symbols is mandatory. An information sheet on this subject is available upon request.
12. Addition for Customers Abroad
For our Customers abroad, the following additions/changes shall apply: The overall cost of any out-of-court or court proceedings (attorney’s/court fees) shall be borne by the parties according to the prevailing/losing ratio. German law shall apply, to the exclusion of the April 11, 1980 Vienna UN Convention for the International Sale of Goods. The languages of the contract shall be German and English. In the case of any questions of interpretation regarding the contractual documents including these General Terms and Conditions, the German version shall prevail.