GENERAL TERMS AND CONDITIONS
Ungurean Service GmbH
Burgauer Str. 3, 89358 Kammeltal-Ettenbeuren
§ 1 Scope - Subject Matter of the Contract
Our general terms and conditions apply to the provision of services according to the contract concluded between us and the client.
Our general terms and conditions apply exclusively; we do not recognize any terms and conditions of the client that are contrary to or deviate from our general terms and conditions, unless we have expressly agreed in writing to their applicability. Our general terms and conditions also apply if we perform the services unconditionally in the knowledge of terms and conditions of the client that are contrary to or deviate from our general terms and conditions.
§ 2 Offer and Conclusion of Contract (and Offer Documents)
The order placed by the client represents a binding offer that we can accept within 4 weeks by sending an order confirmation (also by email) or by handing over the work or providing our work or maintenance performance. Offers or cost estimates submitted by us previously are non-binding.
We reserve the right of ownership and copyright to all illustrations, drawings, calculations, and other documents. This also applies to such written documents that are designated as "confidential." The client requires our express written consent before passing them on to third parties.
§ 3 Prices and Payment Terms
The agreed price is decisive. Binding price information is generally provided based on a written cost estimate, in which all details and the materials required for manufacturing the work or providing the services are listed individually, specifying the price. We are bound by such a cost estimate if the order is placed with us within 4 weeks of receipt of the cost estimate by the client.
Our invoices are payable immediately upon receipt. The client is in default no later than 30 days after the due date. In the absence of a particular agreement, payment is to be made without any deductions.
The timeliness of the payment is determined by the receipt of the money by us.
Payment by installments is accepted only on the basis of a special written agreement.
Payment by bill of exchange is not accepted.
A payment is only considered made when we have the amount at our disposal. In the case of checks, payment is only considered made when the check is cashed.
Our employees or representatives in the field are not authorized to collect payments.
Our prices are understood as net “ex works,” plus the statutory value-added tax applicable on the day of invoicing, as well as the costs for transport and packaging.
The client's right of retention is excluded unless the counterclaim of the client arises from the same contractual relationship and is undisputed or legally determined.
§ 4 Delivery and Performance Times, Deliveries, Transfer of Risk
The delivery times indicated by us are only approximately agreed upon. The start of the delivery time indicated by us presupposes the clarification of all technical questions. A delivery time indicated by us begins on the date of issue of the corresponding confirmation, but not before the supply of the documentation, permits, approvals, and receipt of an agreed advance payment to be procured by the client. The delivery time is adhered to if the goods have left the warehouse by the end of the delivery time or the readiness for dispatch of the goods has been reported.
The delivery period is appropriately extended in the event of measures as part of labor disputes, particularly strikes and lockouts, as well as in the event of unforeseen obstacles that lie outside our sphere (force majeure), provided such obstacles can be proven to have a significant effect on the manufacture or delivery of the delivery item. This also applies if such circumstances occur with sub-suppliers. The aforementioned circumstances are also not our responsibility if they occur during an already existing delay. We will inform the client of the start and end of such obstacles as soon as possible.
We are entitled to make reasonable partial deliveries and invoice such partial deliveries.
In the case of delivery delay due to slight negligence, we are liable only up to 5% of the delivery value affected by the delay, in any case, however, limited to the foreseeable, typically occurring damage.
Insofar as the delay is based on intent or gross negligence on our part, we are liable according to statutory regulations, but limited to the foreseeable, typically occurring damage, unless there is an intentional breach of contract on our part.
The risk of transport is borne by the client.
Insofar as the assertion of rights by the client requires the setting of a reasonable grace period, this is at least 2 weeks.
§ 5 Inspection of Goods
The client must examine the goods immediately for completeness, conformity with the delivery documents and the order, and for defects, and must notify us immediately in writing of any recognizable discrepancies and defects. If a complaint is not made within 4 working days of receipt by the client, the delivery is considered contractual, unless the deviation was not recognizable despite careful examination. In addition, transport damage or shortages recognizable upon delivery must be noted on the receipt of the carrier in accordance with § 438 HGB.
§ 6 Liability for Defects
The assertion of defect rights by the client presupposes that they have duly fulfilled their obligations to examine and notify. For the sale of used goods, any warranty is excluded.
If a warranty claim exists, the client is obligated, in the event of an existing manufacturer's warranty, to make a serious attempt to enforce claims from the manufacturer's warranty against the manufacturer out of court before resorting to 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 with this, we are initially entitled, at our discretion, to fulfill our obligation by remedying the defect or delivering a replacement or new manufacture. Exchanged goods or parts thereof are our property and must be returned to us. If we are not willing or able to provide remedial action, or if it is delayed beyond reasonable periods for reasons we are responsible for, or if the remedial action fails in any other way, or if it is unreasonable for the client, the client is entitled, at their option, to withdraw from the contract or to demand a corresponding reduction in the purchase price or the agreed work wage.
In the case of withdrawal, the client must allow for the usage benefits obtained up until withdrawal. The usage benefit for the time up to withdrawal is calculated proportionally based on the purchase price or the agreed work wage and the usual total usage duration of the goods, unless the usage was only limited or not possible due to the defect. Evidence of a lesser or greater usage benefit remains unaffected for both parties. An insignificant defect does not entitle the client to withdraw from the contract.
If the examination of a defect report shows that there is no material defect, we are entitled to charge the client a reasonable flat fee for expenses/processing. In this case, the client is free to demonstrate less effort than charged.
The aforementioned claims for defects expire in one year from the transfer of risk. This does not apply insofar as it concerns claims for damages due to defects. For claims for damages due to a defect, § 7 applies.
The client does not receive guarantees in the legal sense from us.
§ 7 Liability for Damages
Our liability for breaches of contractual duties and in tort is limited to intent and gross negligence and to compensation for typically occurring damage. This does not apply to injury to life, body, or health of the client, claims based on the violation of cardinal obligations, and compensation for delay damages (§ 286 BGB). In such cases, we are liable for any degree of fault. As far as damages are concerned that do not result from injury to life, body, or health of the client, we are liable only for typically occurring damage.
The above exclusion of liability also applies to slightly negligent breaches of duty by our vicarious agents.
Insofar as liability for damages not based on injury to life, body, or health of the client is not excluded for slight negligence, such claims become time-barred within one year, beginning with the emergence of the claim or, for claims for compensation due to a defect, from acceptance of the work.
Insofar as liability for damages is excluded or limited against us, this also applies with respect to the personal liability for damages of our employees, workers, staff, representatives, and vicarious agents.
§ 8 Withdrawal
We are entitled to withdraw from the contract in the event of outstanding, incorrect, or late self-delivery.
We are entitled to withdraw from the contract if the client has filed an application for commencement of insolvency proceedings over their assets, has made a sworn statement under § 807 ZPO, or if insolvency proceedings over their assets have been opened or the opening has been denied due to lack of assets.
§ 9 Retention of Title
We retain ownership of the goods delivered by us until all claims against the client have been fulfilled, even if the specific goods have already been paid for.
The client must inform us immediately about enforcement measures by third parties on the goods subject to retention of title, handing over the necessary documents for intervention; this also applies to impairments of any kind. Irrespective of this, the client must already inform the third parties in advance of the rights existing to the goods. The costs of an intervention by the user are borne by the client insofar as the third party is not able to reimburse them.
In the event of resale/renting of the goods subject to retention of title, the client hereby assigns any claims arising from the mentioned transactions against their customers to us for security purposes until all claims against the client have been fulfilled.
If the goods subject to retention of title are processed, transformed, or combined with another item, we acquire immediate ownership of the created item. This is considered as goods subject to retention of title.
If the value of the security exceeds our claims against the client by more than 20%, we are obliged, at the request of the client and at our discretion, to release securities to which we are entitled to the corresponding extent.
§ 10 Limitation of Our Claims
Our claims for payment of the agreed price become time-barred, deviating from § 195 BGB, in 5 years. Regarding the start of the limitation period, § 199 BGB applies.
§ 11 Lump-Summing of Compensation Claims
In the event of breaches of duty by the client, we can demand 5% of the order value as compensation.
If the client cancels a confirmed order, we can demand 10% of the price agreed for this order for the costs incurred in 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 require written form. The waiver of the written form requirement also requires written form.
Oral promises by our representatives or other auxiliary persons require written confirmation from us.
§ 13 Choice of Law – Place of Jurisdiction
This contract is governed exclusively by the laws of the Federal Republic of Germany. The application of the UN Sales Convention is excluded.
The exclusive place of jurisdiction for contracts with merchants, legal entities under public law, or special funds under public law is the court responsible for our registered office.
§ 14 Place of Performance and Payment
Unless otherwise specified in the contract, the place of performance and payment is our business location.
§ 15 Change of Contracting Party
We reserve the right to transfer the rights and obligations arising from the contract to another company. We shall inform the client of this. The client has an extraordinary right of termination within one month of becoming aware of the contract transfer.
§ 16 Severability Clause
Should one or more provisions be or become invalid, the validity of the remaining provisions shall not be affected. The contracting parties are obliged to replace the invalid clause with a clause that comes as close as possible to the invalid clause and is valid.
Status: January 2004
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