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Terms and conditions of UNILUX GmbH

1. Applicability

1.1 All orders for deliveries and services are accepted and executed solely on the basis of the following general terms and conditions (hereinafter, “terms and conditions”) of UNILUX GmbH (hereinafter, “UNILUX”). These terms and conditions apply exclusively. UNILUX does not recognize any terms and conditions of the customer that contradict or deviate from these terms and conditions or that are not regulated by these terms and conditions, unless UNILUX has expressly agreed to their validity in writing. This also applies if UNILUX carries out the deliveries and services without reservation in full knowledge of the terms and conditions of the customer that contradict or deviate from these terms and conditions or that are not regulated by these terms and conditions, or if the customer refers to the validity of their terms and conditions in their inquiry, order, or otherwise in connection with the performance of the contract.

1.2 These terms and conditions also apply to all future transactions with the customer, without requiring any express reference in each case.

1.3 These terms and conditions only apply to entrepreneurs within the meaning of § 14 of the BGB.

 

2. Quotation – Conclusion of contract – Content of contract – Offer documents

2.1 Orders addressed to UNILUX are binding. These are accepted by UNILUX through the issue of a written order confirmation.

2.2 Where the order confirmation from UNILUX contains changes compared to the order, the order confirmation from UNILUX is binding on the customer if they do not object to the order confirmation within three working days of receipt thereof.

2.3 UNILUX generally does not provide technical consultancy in connection with the sale of the products, unless UNILUX has exceptionally and expressly included a written agreement with the customer relating to a consultancy service.

2.4 Unless otherwise agreed between the customer and UNILUX, illustrations, drawings, calculations and other documents relating to a product, application or project that contain know-how worthy of protection remain the property of UNILUX and are subject to UNILUX copyright, even if UNILUX has handed these over to the customer. They may not be reproduced or made accessible to third parties without the express prior written consent of UNILUX.

 

3. Creditworthiness – Guarantees

Where there are actual indications of a deterioration of the assets of the customer following the conclusion of the contract, or, if other facts exist or become apparent following the conclusion of the contract that justify the assumption that a claim by UNILUX to the consideration is placed at risk by the lack of ability of the customer to pay, UNILUX is entitled to require the customer to provide adequate security and/or to revoke any payment terms that may have been granted. If the customer is not able to provide the required, adequate security within a reasonable period of time, UNILUX is entitled to withdraw from the contract. Existing claims from deliveries and services that have been performed or claims due to delays remain unaffected, as do UNILUX’s rights under § 321 of the BGB.

 

4. Prices – Payment terms – Offsetting

4.1 The basis for UNILUX’s price calculations are the UNILUX price lists applicable at the time that the contract was concluded, supplements to these price lists and customer information in which price changes are communicated, and/or the offers made on the subject. UNILUX will provide these lists and information to the customer upon request.

4.2 The invoice amount is payable immediately after invoicing via SEPA company direct debit (B2B).

4.3 If it becomes known and/or determined after the conclusion of the contract with the customer or after delivery that the prerequisites for an assumed exemption from value added tax were not met at the time of the delivery or subsequently no longer apply, the customer must pay UNILUX the statutory value added tax in addition to the agreed purchase price.

4.4 Rights of retention and offsetting may only be asserted by the customer if counterclaims against them are undisputed, recognized by UNILUX, legally established or have a close mutual relationship with UNILUX’s claim. In addition, the customer is only authorized to exercise a right of retention insofar as their counterclaim relates to the same contractual relationship.

4.5 UNILUX rejects any limitation on the statutory right to refuse performance and rights of retention.

 

5. Terms of delivery – Time of performance

5.1 Unless otherwise agreed by the customer and UNILUX, delivery will take place in Germany “DAP” (delivered to a specified destination/seller pays for main transportation) in accordance with the Incoterms in the respectably applicable version (currently Incoterms 2020). The place of delivery in accordance with DAP is the venue stipulated in UNILUX’s offer or in UNILUX’s acceptance.

The separate “Shipping terms for export” apply to deliveries abroad.

In the event of any inconsistency between these terms and the “Shipping terms for export”, the “Shipping terms for export” shall prevail.

5.2 Partial deliveries are permitted to an extent that it is reasonable to the customer.

5.3 The times and dates for UNILUX deliveries and services are generally non-binding approximate information, unless UNILUX has agreed a binding time or date for the deliveries and services with the customer, subject to additional remuneration.

5.4 A binding deadline for UNILUX deliveries and services only begins once all of the details of the execution of the contract have been clarified and both parties agree on all of the conditions of the conclusion of the contract and the performance of the contract, but not before the complete provision of the documents, approvals, releases to be procured by the customer, and not before the receipt of any agreed down payment. Compliance with the delivery times by UNILUX also presupposes the timely and orderly fulfillment of all of the customer’s obligations. The right to object to the non-fulfillment of the contract is reserved.

 

6. Dispatch – Packaging costs – Transfer of risk – Default of acceptance

6.1 Dispatch generally occurs in delivery zones with no packaging costs.

6.2 The risk of accidental loss or of accidental deterioration of the products is transferred to the customer upon delivery at the stipulated venue (products are ready for unloading).

6.3 If the customer delays acceptance, the risk of accidental loss or accidental deterioration of the products is transferred to the customer at the point in time at which the customer delays acceptance.

6.4 Where the customer is in default or culpably violates other duties/obligations to cooperate, UNILUX is entitled to demand compensation for damages, costs and expenses incurred in this respect. Further claims are reserved.

6.5 If the customer delays acceptance, UNILUX is entitled to demand compensation from the customer for costs arising from the storage and/or special transportation of the products affected by the default of acceptance.

 

7. Unloading – Reusable racks – Load securing aids

7.1 Reusable racks are unloaded in Germany with a truck-loaded forklift by the driver, and abroad, by the customer.

7.2 Reusable racks and load securing aids (particularly tensioning straps; hereinafter, “aids”) are and remain the property of UNILUX. UNILUX is entitled to claim the return of the reusable racks and aids from the customer at any time.

7.3 The reusable racks will only be returned after prior notification by the customer, which must occur at least 24 hours before retrieval. Notification must be made by fax. The relevant valid fax number will be provided on request.

7.4 If the customer retains a reusable rack for more than two weeks after delivery, they must pay a rental fee, which is included in the relevant UNILUX price list, to UNILUX for every reusable rack for every week started as of the beginning of the third week, until notification is received.

7.5 The customer bears the risk of accidental loss and accidental deterioration for reusable racks and aids in their possession. The customer is liable for any intentional or accidental damage or impairment of the reusable racks and aids for the duration of the possession of the reusable racks and aids.

7.6 In the event of the loss of or damage to reusable racks and aids, UNILUX is entitled to claim from the customer the value of the reusable racks and aids listed in the respectively applicable UNILUX price list. It is up to the parties to prove that greater, lower, or no damage at all has occurred.

 

8. Condition – Claims for defects – Investigation and notification obligations

8.1 The condition of the UNILUX products is determined solely and exclusively from UNILUX product documentation such as catalogs, product folders, price lists and the guidelines for assessing the visual quality of glass for the building industry (the Hadamar guideline) as well as the “Visual Assessment of PVC Window and Door Element Surfaces” guideline (the VFF leaflet), unless a different written agreement on condition has been concluded.

8.2 Claims will not be entertained for defects resulting from (a) instances of natural wear and tear, (b) faulty or negligent treatment and care, (c) excessive stress, (d) the use of inappropriate resources and care products, (e) incorrect storage, as well as (f) a failure to observe processing, use and maintenance instructions, or (g) due to special external influences that are not required under the contract. If the customer or a third party makes improper changes or repairs, no claims for defects will be entertained for these and the resulting consequences.

8.3 The statutory burden of proof applies as always, according to which the customer must present and prove any defect.

8.4 The customer agrees with UNILUX that in the event of a claim for subsequent performance by the customer (repair or redelivery) the more cost-effective option will be chosen, provided that the customer does not suffer any disadvantages as a result.

8.5 Claims for defects with regard to windows and doors are limited to a period of 5 years from the transfer of risk.

Claims for defects relating to electrical, electronic or mechanical components and elements, to paints, varnishes, cleaning agents, care products and sealants are limited to a period of one year from delivery. This does not apply where longer periods are prescribed by law, and to liability for damage resulting from injury to life, body or health as well as to liability for damage relating to an intentional or grossly negligent breach of duty.

8.6 Deviations in the structure and color when compared to display pieces or to samples are reserved in so far that such deviations are due to the nature of the materials used and/or are usual and customary for the relevant materials.

8.7 Claims or complaints must be reported in writing to UNILUX immediately, or at the latest within 10 days of delivery/service provision – in the case of obvious defects – or – in the case of hidden defects – immediately after the defect is discovered (generally during installation). Otherwise, the assertion of claims for defects is excluded. UNILUX does not agree to a limitation on the customer’s statutory investigation and notification obligation (particularly pursuant to § 377 of the HGB).

8.8 In the event of a notification of defects, the customer may only withhold payments (e.g., in the form of debit notes) to an extent that is in reasonable proportion to the defects that have occurred. The customer may only withhold payments if a justified notification of defects has been asserted. If the notification of defects is culpably wrong, UNILUX is entitled to demand compensation from the customer for the damages, costs and expenses incurred by UNILUX as a result of the unjustified notification of defects. Any further claims remain unaffected.

8.9 Any claim by the customer to a discount shall lapse if the customer has withheld payments without justification.

8.10 In the event of unjustified complaints that UNILUX has been requested to remedy, UNILUX will invoice for the costs and expenses incurred.

8.11 The customer may only claim for damages in accordance with the following provision (clause 9).

 

9. Liability

9.1 UNILUX is only liable for compensation for damages and for compensation for futile expenses within the meaning of § 284 of the BGB (hereinafter, “compensation for damages”) due to a defect in the delivery or service, or due to a violation of other contractual or non-contractual obligations, in particular due to unlawful acts, in the event of intent or gross negligence. The aforementioned limitation of liability does not apply to injury to life, body or health, to the assumption of a guarantee or procurement risk, or a violation of essential contractual obligations as well as liability under the Product Liability Act.

9.2 Compensation for damages due to violations of essential contractual obligations is limited to the compensation for contractually typical damage that UNILUX should have foreseen as a possible consequence upon the conclusion of contract due to circumstances recognizable to UNILUX, unless they are liable due to intent or gross negligence or injury to life, body or health, or the assumption of a guarantee or procurement of risk or in accordance with the Product Liability Act.

9.3 Contractually typical damage within the meaning of 9.2 above comprises:

a. Per claim: up to a maximum of the net value of the goods under the contract in connection with which the claim arose;

and

b. In the event of multiple claims, within a single calendar year: up to a maximum of 50% of the net turnover for the products and services which the customer has purchased from UNILUX during the current calendar year.

9.4 Irrespective of clauses 9.1 and 9.2 above, the economic conditions at UNILUX, the type, scope and duration of the business relationship, possible contributory acts by the customer according to § 254 of the BGB shall be adequately taken into account in favor of UNILUX when determining the amount of the claims for damages against UNILUX. In particular, the compensation payments, costs and expenses that UNILUX is required to bear must be reasonably proportional to the value of the products delivered by UNILUX and/or the services provided by UNILUX.

9.5 All limitations of liability apply to the same extent for vicarious agents.

9.6 The above-mentioned provisions shall not result in a change to the burden of proof to the customer’s disadvantage.

9.7 Significant contractual obligations within the meaning of 9.1 and 9.2 are those obligations, the fulfillment of which is essential to the proper execution of the contract and the observance of which the customer could regularly rely and has relied on.

 

10. Force majeure – Extension of the delivery times – Impossibility of delivery – Reservation of self-delivery

10.1 In the event of force majeure, namely in the event of unforeseen events over which UNILUX has no influence and for which UNILUX is not responsible (e.g., fire, flooding, storms, explosions or other natural catastrophes, mobilizations, wars, riots, operational disruptions, changes to the law) – also at the delivery plant or at subcontractors or other third parties involved – the delivery and service periods will be extended for the duration of the events that caused the delay, provided that these hindrances can be proven to have a not merely insignificant effect on the provision, completion or delivery. This also applies if such circumstances occur during a delay.

10.2 If it is not possible to provide the delivery or service within a reasonable period of time due to such an event, the customer and UNILUX are entitled to withdraw from the contract, either partially or in full. The same applies in the event that UNILUX is responsible for the subsequent impossibility of fulfilling the contract.

10.3 Claims for damages due to a withdrawal of this kind will not be entertained. Where a party entitled to withdraw intends to make use of those rights of withdrawal, they must provide immediate notification once they become aware of the consequences of the event.

10.4 UNILUX will be released from its obligation to deliver, if UNILUX, through no fault of its own, is not supplied on time with the correct products ordered in order to fulfill the contract.

 

11. Retention of title

11.1 All goods and products delivered by UNILUX remain the unrestricted property of UNILUX until all claims arising from the business relationship between the customer and UNILUX have been paid in full. This also applies if the purchase price has been paid for certain deliveries of goods specified by the customer.

11.2 Insofar as the validity of this retention of title is linked to particular specifications or formal requirements in the customer’s country, the customer is obliged to indicate this to UNILUX and to ensure that these are met at their own expense.

11.3 Any processing, mixing or combination of the delivered goods is always carried out for UNILUX as the manufacturer, without any obligations arising therefrom for UNILUX. If the (co-)ownership of the reserved goods expires due to processing, mixing or combination, it is already hereby agreed that the ownership or co-ownership rights to the new item to the extent of the invoice value of the reserved goods from UNILUX are transferred to UNILUX and the customer stores these for UNILUX free of charge.

11.4 As long as UNILUX retains such title, the customer is not entitled to assign or pledge the goods as security to a third party. In the event of a pledge or confiscation by a third party, the customer will point out UNILUX’s ownership and notify UNILUX immediately. The costs of any intervention procedure will be borne by the customer, unless claims can be asserted against the third party involved.

11.5 The customer is entitled to process and sell the reserved goods in the normal course of business. In order to secure UNILUX’s claims, the customer hereby assigns to UNILUX any claims arising from the onward sale or any other legal basis relating to the reserved goods in the amount of the invoice amount on which the delivery from UNILUX is based plus a 20% security surcharge. The customer is obliged to issue written declarations of assignment upon request by UNILUX. The customer is revocably entitled to collect the assigned claims for UNILUX in their own name in the normal course of business.

11.6 If there is an excess security that exceeds the value of the secured claims by more than 20%, UNILUX is obliged to reassign that amount on request by the customer.

11.7 Upon request by UNILUX, the customer is obliged to provide detailed evidence of claims against third parties relating to the reserved goods.

11.8 In the event of a default, UNILUX can disclose the assignment to the third party and carry out the collection themselves or require that the customer informs the third party of the assignment, under the condition that payment is made exclusively to UNILUX up to the amount of the claims against the customer to which UNILUX is entitled.

 

12. UNILUX installation guidelines

The customer must observe the installation guidelines contained in the respective current handbook for installation (handbook for the planning and design of window and entrance door installations) of the RAL-Gütegemeinschaften Fenster und Haustüren e.V., D-60594 Frankfurt.

 

13. Jurisdiction – Applicable law

13.1 The jurisdiction for legal disputes that fall within the substantive jurisdiction of the local courts is the Wittlich County Court, and, for legal disputes that fall within the substantive jurisdiction of the regional courts, the Trier District Court. UNILUX is optionally entitled to file a lawsuit at the location of the customer's registered office.

13.2 The law of the Federal Republic of Germany applies exclusively to these terms and conditions and the entire legal relationship between the customer and UNILUX, excluding the conflict of law provisions.

 

Version 12/2019