§ 1 Scope, form
(1) These General Terms and Conditions of Sale (GTC) shall apply to all our business relations with our customers ("Buyer"). The GTC shall only apply if the Buyer is an entrepreneur (§ 14 German Civil Code „BGB“), a legal entity under public law or a special fund under public law.
(2) The GTC shall apply in particular to contracts for the sale and/or delivery of movable goods ("Goods"), irrespective of whether we manufacture the Goods ourselves or purchase them from suppliers (§§ 433, 650 BGB). Unless otherwise agreed, the GTC in the most current version agreed in each case as a framework agreement shall also apply for similar future contracts without our having to refer to them again in each individual case.
(3) Our GTC shall 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 consented to their application. This requirement of consent shall apply in any case, for example even if we carry out the delivery to the Buyer without reservation in the knowledge of the Buyer's GTC.
(4) Individual agreements made with the Buyer in individual cases (including collateral agreements, supplements and amendments) shall in any case take precedence over these GTC. Subject to proof to the contrary, the content of such agreements shall be governed by a written contract or our written confirmation (text form is sufficient (e.g. e-mail, fax)).
(5) Legally relevant declarations and notifications by the Buyer with regard to the contract (e.g. setting of deadlines, notification of defects, withdrawal or reduction) shall be made in writing, i.e. in written or text form (e.g. letter, e-mail, fax). Legal formal requirements and further proofs, in particular in case of doubts about the legitimacy of the declaring party, shall remain unaffected.
(6) References to the applicability of statutory provisions are for purposes of clarification only. Even without such clarification, the statutory provisions shall therefore apply unless they are not directly amended or expressly excluded in these GTC.
§ 2 Conclusion of contract
(1) The Buyer shall notify Unger immediately of any change in its data, which shall also include any change/ deletion of the commercial registration that was documented at the time the business relationship was established.
(2) Our offers are subject to change and non-binding. This shall also apply if we have provided the Buyer with catalogs, technical documentation (e.g. drawings, plans, calculations, estimates, references to DIN standards), other product descriptions or documents - also in electronic form - to which we reserve property rights and copyrights.
(3) The order of the goods by the Buyer shall be deemed a binding offer of contract. Unless otherwise stated in the order, we shall be entitled to accept this offer of contract within 4 weeks of its receipt by us.
(4) Acceptance may be declared either in writing or in text form (e.g. by order confirmation) or by delivery of the goods to the Buyer.
(5) The Buyer is obliged to check the order data, conditions and delivery dates of the confirmation for completeness and correctness within 5 working days and to submit any complaints in writing, otherwise the data shall be deemed to be in conformity with the contract.
§ 3 Delivery period and delay in delivery
(1) The delivery period shall be agreed individually or specified by us upon acceptance of the order.
(2) If we are unable to meet binding delivery deadlines for reasons for which we are not responsible (non-availability of the service), we shall inform the Buyer of this without delay and at the same time notify the Buyer of the expected new delivery deadline. A case of non-availability of performance in this sense shall be deemed to be in particular the non-timely self-delivery by our supplier if we have concluded a congruent covering transaction, neither we nor our supplier are at fault or we are not obliged to procure in the individual case.
(3) The occurrence of our delay in delivery shall be determined in accordance with the statutory provisions. In any case, however, a reminder by the Buyer is required.
(4) The rights of the Buyer pursuant to § 8 of these GTC and our statutory rights, in particular in the event of an exclusion of the obligation to perform (e.g. due to impossibility of service or unreasonableness of performance and/or subsequent performance), shall remain unaffected.
§ 4 Delivery, Transfer of Risk, Acceptance, Default of Acceptance
(1) Delivery shall be made ex warehouse, which is also the place of performance for the delivery and any subsequent performance. At the Buyer's request and expense, the goods shall be shipped to another destination (sale by delivery to a place other than the place of performance). Unless otherwise agreed, we shall be entitled to determine the type of shipment (in particular transport company, shipping route, packaging) ourselves. Unger is entitled to make partial deliveries.
(2) The risk of accidental loss and accidental deterioration of the goods passes to the Buyer upon dispatch. In the case of shipment purchase, i.e. the sale by delivery to a place other than the place of performance, however, the risk of accidental loss and accidental deterioration of the goods as well as the risk of delay shall pass to the Buyer upon delivery of the goods to the forwarding agent, the carrier or any other person or institution designated to carry out the shipment. Any claims Unger may have against this person or institution in the event of damage or loss of the goods shall be assigned by Unger to the Buyer. Unger will assist the Buyer in settling the claim.
(3) If the Buyer is in default of acceptance, fails to cooperate or if our delivery is delayed for other reasons for which the Buyer is responsible, we shall be entitled to claim compensation for the resulting damage including additional expenses (e.g. storage costs). For this purpose, we may also charge a lump-sum compensation of EUR 10 per calendar day, starting with the delivery deadline or - in the absence of a delivery deadline - with the notification that the goods are ready for shipment. In the event of higher damages caused by delay, this lump sum shall be credited. In addition, we are entitled to charge the statutory lump sum of § 288 para. 5 BGB (EUR 40), which, however, shall be offset against any legal costs.
(4) The proof of higher damages and our statutory claims (in particular compensation for additional expenses, reasonable compensation, termination) shall remain unaffected; however, the lump sum shall be offset against further monetary claims. The Buyer shall be entitled to prove that we have incurred no damage at all or only significantly less damage than the aforementioned lump sum.
(5) We participate in the BONNER PALETTENTAUSCH when delivering palletized goods. We therefore use our own Euro pallets and undertake vis-à-vis the forwarders/ carriers that upon delivery of palletized goods at the unloading point empty Euro pallets of the same number, type and quality will be handed over step by step. However, with regard to deliveries abroad, this shall only apply to those countries in which the European exchange pool for Euro pallets takes place. In the event of such a delivery, you therefore undertake to make corresponding Euro pallets available to the delivering company for return to us.
(6) The Buyer shall be responsible for the return and proper disposal of industrial batteries placed on the market by us with the goods sold.
§ 5 Prices and terms of payment
(1) Unless otherwise agreed in individual cases, our prices current at the time of conclusion of the contract shall apply, ex warehouse, plus statutory value added tax.
(2) Any customs duties, fees, taxes and other public charges shall be borne by the Buyer. The costs of any transport insurance requested by the Buyer shall always be paid by the Buyer.
(3) The purchase price shall be due and payable within 10 days from the date of invoice and delivery of the goods. However, we are entitled at any time, even within the framework of an ongoing business relationship, to carry out a delivery in whole or in part only against advance payment. New customers must always pay in advance, the delivery will be made only after receipt of payment by us before the confirmed delivery date, otherwise Unger may cancel the order.
(4) Upon expiry of the aforementioned payment deadline, the Buyer shall be in default. During the period of default, interest shall be charged on the purchase price at the applicable statutory default interest rate. We reserve the right to assert further damage caused by default. With respect to merchants, our entitlement to the commercial maturity interest rate (§ 353 German Commercial Code „HGB“) shall remain unaffected.
(5) The Buyer shall only be entitled to rights of set-off or retention to the extent that its 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 pursuant to § 7 para. 6 sentence 2 of these GTC.
(6) If it becomes apparent after the conclusion of the contract (e.g. by filing for the opening of insolvency proceedings) that our claim to the purchase price is jeopardized by the Buyer's inability to pay, we shall be 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 production of items of individual custom manufacture, we may declare withdrawal immediately; the statutory provisions on the dispensability of setting a deadline shall remain unaffected.
§ 6 Retention of title
(1) Until full payment of all our present and future claims arising from the purchase contract and an ongoing business relationship (secured claims), we retain title to the goods sold.
(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 Buyer shall notify us immediately in writing if an application for the opening of insolvency proceedings is filed or if third parties (e.g. seizures) seize the goods belonging to us.
(3) In the event of conduct by the Buyer in breach of the contract, in particular in the event of non-payment of the purchase price due, we 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 retention of title. The demand for return does not at the same time include the declaration of withdrawal; we are rather entitled to demand only the return of the goods and to reserve the right of withdrawal. 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 setting such a deadline is dispensable according to the statutory provisions.
(4) Until revoked in accordance with (c) below, the Buyer shall be authorized to resell and/or process the goods subject to retention of title in the ordinary course of business. In this case, the following provisions shall apply in addition.
(a) The retention of title shall extend to the products resulting from the processing, mixing or combination of our goods at their full value, whereby we shall be deemed to be the manufacturer. If, in the event of processing, mixing or combining with goods of third parties, their right of ownership remains, we shall acquire co-ownership in proportion to the invoice values of the processed, mixed or combined goods. Otherwise, the same shall apply to the resulting product as to the goods delivered under reservation of title.
(b) The Buyer hereby assigns to us by way of security any claims against third parties arising from the resale of the goods or the product in total or in the amount of our co-ownership share, if any, in accordance with the preceding paragraph. We accept the assignment. The obligations of the Buyer stated in § 6 para. 2 of these GTC shall also apply in respect of the assigned claims.
(c) The Buyer shall remain authorized to collect the claim in addition to us. We undertake not to collect the claim as long as the Buyer meets his payment obligations towards us, there is no deficiency in his ability to pay and we do not assert the retention of title by exercising a right pursuant to § 6 para. 3 of these GTC. If this is the case, however, we may demand that the Buyer inform us of the assigned claims and their debtors, provide all information necessary for collection, hand over the relevant documents and inform the debtors (third parties) of the assignment. In addition, in this case we shall be entitled to revoke the Buyer's authorization to further sell and process the goods subject to retention of title.
(d) If the realizable value of the securities exceeds our claims by more than 10%, we shall release securities of our choice at the Buyer's request.
§ 7 Claims for defects of the Buyer
(1) The statutory provisions shall apply to the Buyer's rights in the event of material defects and defects of title (including wrong delivery and shortfall in delivery as well as 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 § 478 BGB). Claims from supplier recourse are excluded if the defective goods have been further processed by the Buyer or another entrepreneur, e.g. by incorporation into another product.
(2) The basis of our liability for defects is above all the agreement reached on the nature and condition of the goods. All product descriptions and manufacturer's specifications which are subject of the individual contract or which were publicly announced by us (in particular in catalogs or on our Internet homepage) at the time of the conclusion of the contract shall be deemed to be an agreement on the condition of the goods.
(3) Insofar as the quality has not been agreed, it shall be assessed in accordance with the statutory provision whether a defect is present or not (§ 434 para. 1 sentences 2 and 3 BGB). However, we shall not be liable for public statements of the manufacturer or other third parties (e.g. advertising statements) to which the Buyer has not referred to us as being decisive for the purchase.
(4) We shall not be liable for defects of which the Buyer is aware at the time of conclusion of the contract or is not aware due to gross negligence (§ 442 BGB). Furthermore, the Buyer's claims for defects shall require that he has complied with his statutory obligations to inspect and give notice of defects (§§ 377, 381 HGB). If a defect becomes apparent upon delivery, inspection or at any later time, we must be notified thereof in writing without delay. In any case, obvious defects shall be notified to us in writing within 10 working days of delivery and defects not apparent on inspection within the same period of time from discovery. If damage occurs during delivery which the Buyer can readily recognize upon receipt of the goods, the Buyer shall immediately note such damage on the consignment bill or transport receipt and have it acknowledged by the carrier in order to enable Unger to assert any claims against the carrier/freight forwarder. If the Buyer fails to make the proper inspection and/or notification of defects, our liability for the defect not notified or not notified in time or not notified properly shall be excluded in accordance with the statutory provisions.
(5) If the delivered item is defective, we may initially choose whether to provide subsequent performance by remedying the defect (subsequent improvement/rectification) or by delivering an item free of defects (replacement delivery). Our right to refuse subsequent performance under the statutory requirements shall remain unaffected.
(6) We shall be entitled to make the subsequent performance owed dependent on the Buyer paying the purchase price due. The Buyer shall, however, be entitled to retain a reasonable part of the purchase price in relation to the defect.
(7) Unger must be notified prior to the return of any goods notified as defective. Goods sent in without prior notice cannot be accepted and processed by Unger. The Buyer shall bear the shipping costs. The Buyer has to give us the time and opportunity necessary for the owed supplementary performance, in particular to hand over the rejected goods for inspection purposes. In the event of a replacement delivery, the Buyer shall return the defective item to us in accordance with the statutory provisions. Subsequent performance shall neither include the removal of the defective item nor the re-installation if we were not originally obliged to install the item.
(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 and, if applicable, removal and installation costs, in accordance with the statutory provisions if there is actually a defect. Otherwise, we may demand reimbursement from the Buyer of the costs incurred as a result of the unjustified request for rectification of the defect (in particular inspection and transport costs), unless the lack of defectiveness was not apparent to the Buyer.
(9) In urgent cases, e.g. if operational safety is at risk or to prevent disproportionate damage, the Buyer shall have the right to rectify the defect itself and to demand reimbursement from us of the expenses objectively necessary for this purpose. We are to be informed immediately of such a self- execution, if possible in advance. The right of self-execution shall not exist if we would be entitled to refuse a corresponding subsequent performance according to the statutory provisions.
(10) If the subsequent performance has failed or if a reasonable period to be set by the Buyer for the subsequent performance has expired unsuccessfully or is dispensable according to the statutory provisions, the Buyer may withdraw from the purchase contract or reduce the purchase price. In the case of an insignificant defect, however, there is no right of withdrawal. In the case of reduction or withdrawal, the Buyer receives a credit note, unless he objects. If he objects, he will receive the corresponding amount paid. Unger reserves the right to offset against its own claims.
(11) Claims of the Buyer for damages or reimbursement of futile expenses shall also exist in the event of defects only in accordance with § 8 of these GTC and shall otherwise be excluded.
(12) Notwithstanding the warranty, Unger warrants that consumables for the products marketed by us as well as spare parts that can be replaced in a technically reasonable manner will be kept available by us for a period of at least 2 years after delivery and can be ordered at the then applicable current list price. The delivery shall only be made in quantities customary in the trade.
§ 8 Liability
(1) As a rule, the products are accompanied by instructions for use and warnings which must be strictly observed. Unger shall not be liable for any damage to the goods or third party damage resulting from failure to observe these instructions for use and warnings. The same applies if the products are not used for the purposes for which they are intended according to the product information.
(2) Insofar as nothing to the contrary arises from these GTC including the following provisions, we shall be liable in accordance with the statutory provisions in the event of a breach of contractual and non-contractual obligations.
(3) We shall be liable without limitation for damages - irrespective of the legal grounds - within the scope of fault-based liability in the event of intent and gross negligence. In the case of simple negligence, we shall be liable, subject to statutory limitations of liability (e.g. care in own affairs; insignificant breach of duty), only
a) for damages resulting from injury to life, body or health,
b) for damages resulting from the breach of an essential contractual obligation (i.e. an obligation whose fulfillment is a prerequisite for the proper execution of the contract and on whose fulfillment the contractual partner regularly relies and may rely); in this case, however, our liability shall be limited to compensation for the foreseeable, typically occurring damage.
(4) The limitations of liability resulting from § 8 para. 3 of these GTC shall also apply to third parties as well as to breaches of duty by persons (also in their favor) whose fault we are 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 Buyer under the German Product Liability Act.
(5) Due to a breach of duty that does not consist of a defect, the Buyer may only withdraw from or terminate the contract 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.
§ 9 Limitation
(1) Notwithstanding § 438 para. 1 No. 3 BGB, the general limitation period for claims arising from material defects and defects of title shall be one year from delivery.
(2) Special statutory provisions on the statute of limitations (in particular § 438 para. 1 no. 1, para. 3, § 445b BGB) shall remain unaffected.
(3) However, Unger shall not be liable for the normal wear and tear of parts subject to wear and tear.
(4) The above limitation periods of the law on sales shall also apply to contractual and non-contractual claims for damages of the Buyer based on a defect of the goods, unless the application of the regular statutory limitation period (§§ 195, 199 BGB) would lead to a shorter limitation period in individual cases. Claims for damages of the Buyer pursuant to § 8 para. 3 sentences 1 and 2(a) of these GTC as well as pursuant to the German Product Liability Act shall become time-barred exclusively in accordance with the statutory limitation periods.
§ 10 Advertising materials and resale
(1) Unger reserves the title and copyright to illustrations, drawings, electronic media and other documents ("Materials"). Buyers are entitled to use Materials that originate from Unger and have been approved by Unger for the respective customer in the context of marketing for resale. Unger reserves the right at any time to prohibit the use of materials in the design of e.g. catalogs or websites if they are used in a misleading or damaging context. The Materials may not be changed without consultation with Unger.
(2) For product names, it is mandatory to use the registration markings.
§ 11 Choice of law and place of jurisdiction
(1) The laws of the Federal Republic of Germany shall apply to these GTC and the contractual relationship between us and the Buyer to the exclusion of its conflict of law provisions and the UN Convention on Contracts for the International Sale of Goods.
(2) If the Buyer is a merchant within the meaning of the German Commercial Code (HGB), 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 our registered office in Solingen. The same shall apply if the Buyer is an entrepreneur within the meaning of § 14 BGB (German Civil Code). However, we are also entitled in all cases to bring an action at the Buyer‘s general place of jurisdiction.
Status: January 2023
For further questions about shipping, returns and handling, please contact us at firstname.lastname@example.org.