GENERAL TERMS AND CONDITIONS
Ungurean Service GmbH
Burgauer Str. 3, 89358 Kammeltal-Ettenbeuren
§ 1 Scope - Subject Matter of the Contract
Our Terms and Conditions apply to the provision of services in accordance with the contract concluded between us and the client.
Our Terms and Conditions apply exclusively; we do not recognize any conflicting or deviating conditions of the client unless we have expressly agreed in writing to their validity. Our Terms and Conditions also apply if we perform the services unconditionally in full knowledge of conflicting or deviating conditions of the client.
§ 2 Offer and Conclusion of Contract (and Offer Documents)
The client's order constitutes a binding offer, which we can accept within 4 weeks by sending a confirmation of order (also by email) or by delivering the work or providing our work or maintenance services. Previously submitted offers or cost estimates from us are non-binding.
We retain ownership and copyright of illustrations, drawings, calculations, and other documents. This also applies to such written documents that are marked as "confidential". Prior to forwarding them to third parties, the client requires our express written consent.
§ 3 Prices and Payment Terms
The agreed price is decisive. Binding price information is generally made on the basis of a written cost estimate, which must list all details and the materials required for the production of the work or for providing the services, including the price. We are bound by such a cost estimate if the order is placed within 4 weeks after the cost estimate has been received by the client.
Our invoices are payable immediately upon receipt. The client is in default at the latest 30 days after the due date. Unless otherwise agreed, payment must be made without any deductions.
The timeliness of payment is determined by the receipt of the money by us.
Installment payments are only accepted based on a special written agreement.
Payments by bill of exchange are not accepted.
A payment is only considered to have been made when we can dispose of the amount. In the case of cheques, payment is only deemed to have been made when the cheque is cashed.
Our employees and sales representatives in the field are not authorized to collect payments.
Our prices are understood net "ex works", plus the statutory value-added tax applicable on the date of invoicing, as well as the costs for transport and packaging.
The client’s right to withhold payments is excluded unless the counterclaim of the client is based on the same contractual relationship and is undisputed or legally established.
§ 4 Delivery and Performance Times, Deliveries, Transfer of Risk
The delivery times specified by us are only approximate. The start of the delivery time indicated by us is subject to clarification of all technical questions. A delivery time stated by us begins on the date of issuing the corresponding confirmation, but not before the provision of the documents, permits, approvals, and receipt of an agreed advance payment that the client must supply. The delivery time is considered met if the goods have left the warehouse by the end of the delivery time or if the readiness for dispatch of the goods has been reported.
The delivery period is extended appropriately in the event of measures taken within the framework of labor disputes, particularly strikes and lockouts, as well as in the event of unforeseen obstacles that are outside our sphere of influence (force majeure), to the extent that such obstacles demonstrably have a significant impact on the manufacture or delivery of the object of delivery. This also applies if such circumstances occur with subcontractors. The aforementioned circumstances are not our responsibility even if they arise during an already present delay. We will inform the client of the start and end of such obstacles as soon as possible.
We are entitled to reasonable partial deliveries and billing of such partial deliveries.
In the event of a delivery delay due to slight negligence, we are liable only up to 5% of the affected delivery value, in any case limited to foreseeable, typically occurring damage.
Insofar as the delay is due to intent or gross negligence on our part, we are liable according to statutory regulations, but limited to foreseeable, typically occurring damage, unless there is no willful breach of contract for which we are responsible.
The risk of transportation is borne by the client.
As far as asserting the client’s rights requires the setting of a reasonable deadline, this shall be at least 2 weeks.
§ 5 Examination of Goods
The client must inspect the goods immediately for completeness, conformity with the delivery documents and the order, and for defects, and must assert any recognizable deviations and defects in writing without delay. If a complaint is not made within 4 working days of receipt by the client, the delivery is deemed to be in accordance with the contract, unless the deviation was not recognizable despite careful inspection. Recognizable transport damages or shortfalls upon delivery must additionally be noted on the carrier’s receipt in accordance with § 438 HGB.
§ 6 Liability for Defects
The assertion of the client’s rights regarding defects requires that the client has properly fulfilled its obligation to inspect and notify us. In the case of the sale of used goods, any warranty is excluded.
If a warranty case exists, the client is obliged, in the case of a manufacturer's warranty, to seriously attempt to enforce the claims against the manufacturer out of court before involving Ungurean Service GmbH. Ungurean Service GmbH will support the client in this. Otherwise, the client's warranty claims remain unaffected.
If and insofar as the client is not satisfied thereafter, we are entitled, at our discretion, to fulfill our obligations again by rectifying the defect or by providing replacement delivery or new production. Replaced goods or parts thereof are our property and must be returned to us. If we are not willing or able to fulfill our obligations again, or if this is delayed for reasons for which we are responsible beyond reasonable time limits (see above § 4 numeral 7), or if fulfillment fails in another way, or if it is unreasonable for the client, the client is entitled, at its option, to withdraw from the contract or to demand a corresponding reduction in the purchase price or agreed compensation.
In the event of withdrawal, the client must account for the advantages of use drawn up to the time of withdrawal. The advantage of use for the time until withdrawal will be proportionally calculated on the basis of the purchase price or the agreed compensation and the usual total useful life of the goods, unless the use was only restricted or not possible due to the defect. Both parties retain the right to prove a lesser or greater advantage of use. A minor defect does not entitle the client to withdraw from the contract.
If the examination of a defect notification reveals that there is no material defect, we are entitled to charge the client a reasonable flat fee for effort/processing. In this case, the client may prove to us a lower effort than what has been billed.
The aforementioned claims for defects expire within one year from the transfer of risk. This does not apply to damage claims due to defects. For damage claims due to a defect, § 7 applies.
No guarantees in the legal sense are granted to the client by us.
§ 7 Liability for Damages
Our liability for contractual breaches and tort is limited to intent and gross negligence as well as compensation for typically occurring damages. This does not apply in the event of injury to life, body, and health of the client, claims due to the violation of cardinal obligations, and compensation for delay damages (§ 286 BGB). To this extent, we are liable for every degree of fault. Insofar as it concerns damages that do not result from the violation of life, body, or health of the client, we are liable only for the typically occurring damage.
The aforementioned exclusion of liability also applies to slight negligent breaches of duty by our vicarious agents.
Insofar as liability for damages not based on the violation of life, body, or health of the client is not excluded for slight negligence, such claims expire within one year starting from the occurrence of the claim or for damage claims due to a defect from the acceptance of the work.
Insofar as the liability for damages against us is excluded or limited, this also applies with regard to the personal liability of our employees, workers, agents, and vicarious agents.
§ 8 Withdrawal
We are entitled to withdraw from the contract in the event of a failure of self-supply, incorrect supply, or untimely supply.
We are entitled to withdraw from the contract if the client has filed a petition for the opening of insolvency proceedings over its assets, has made a declaration under oath pursuant to § 807 ZPO, or if insolvency proceedings are opened over its assets or if the opening is rejected due to lack of assets.
§ 9 Retention of Title
We retain ownership of goods supplied by us until all claims against the client have been fulfilled, even if the specific goods have already been paid for.
The client must immediately inform us of any enforcement measures by third parties against the retained goods by handing over the documents necessary for an intervention; this also applies to other types of impairments. Regardless of this, the client must already inform the third parties in advance of the rights pertaining to the goods. The costs of an intervention by the user shall be borne by the client, to the extent that the third party is not able to reimburse these.
The client assigns to us in advance for the case of the resale/rental of the retained goods all claims arising from such transactions against its customers until all our claims have been fulfilled as security.
In the case of processing the retained goods, their transformation, or their connection with another item, we acquire immediate ownership of the manufactured item. This shall be deemed as retained goods.
If the value of the security exceeds our claims against the client by more than 20%, we shall, at the request of the client and at our discretion, release security to the extent due.
§ 10 Limitation of Our Own Claims
Our claims for payment of the agreed price expire, deviating from § 195 BGB, in 5 years. Regarding the start of the limitation period, § 199 BGB applies.
§ 11 Flat Rate Compensation Claims
In the case of breaches of duty by the client, we can demand 5% of the order value as damages.
If the client cancels a confirmed order, we can demand 10% of the price agreed for this order for the costs incurred from processing the order and for lost profit.
§ 12 Form of Declarations
Legally significant declarations and notifications that the client must make to us or a third party must be in writing. The waiver of the written form requirement must also be in writing.
Oral promises made by our representatives or other helpers require written confirmation from us.
§ 13 Choice of Law – Jurisdiction
This contract shall be governed exclusively by the law of the Federal Republic of Germany. The application of UN sales law is excluded.
The exclusive jurisdiction is the court responsible for our registered office for contracts with merchants, legal entities under public law, or public-law special assets.
§ 14 Place of Performance and Payment
Unless otherwise provided in the contract, our place of performance and payment is our registered office.
§ 15 Change of Contracting Party
We reserve the right to transfer the rights and obligations arising from the contract to another company. We will inform the client about this. The client has the right to extraordinary termination within one month after becoming aware of the transfer of the contract.
§ 16 Severability Clause
If one or more provisions are ineffective or become so, the validity of the remaining provisions shall not be affected. The contracting parties are obliged to replace the ineffective clause with one that comes as close as possible to the ineffective clause and is effective.
As of: January 2004
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