UNILUX GMBH TERMS AND CONDITIONS

1. Scope of Application

1.1 All orders for supplies and services shall only be accepted and executed on the basis of the following General Terms and Conditions (hereinafter referred to as “Terms and Conditions“) of UNILUX GmbH (hereinafter referred to as “UNILUX“). These Terms and Conditions apply exclusively. UNILUX does not recognise the Ordering Party’s conflicting or deviating terms and conditions that are not regulated in these Terms and Conditions, unless UNILUX has expressly acknowledged their validity in writing. This shall also apply if UNILUX carries out the deliveries and services without any reservation while aware of the Ordering Party’s conflicting conditions that deviate from these Terms and Conditions or which are not regulated in these Terms and Conditions, or if the Ordering Party refers to the validity of its Terms and Conditions in its enquiry, in its order or otherwise in connection with execution of the contract.

1.2 These Terms and Conditions shall also apply to all future transactions with the Ordering Party without the need for express reference to them each time.

1.3 These Terms and Conditions only apply to businesses or business owners as defined in Section 14 of the German Civil Code (§ 14 BGB).

2. Quote – Conclusion of Contract – Contract Content – Quote Documents

2.1 Orders sent to UNILUX are binding orders. UNILUX accepts orders when the written order confirmation is sent.

2.2 If UNILUX’s order confirmation contains changes compared to the order, UNILUX’s order confirmation shall be binding for the ordering party if it does not object to the order confirmation within three working days of receipt thereof.

2.3 UNILUX generally does not provide any technical advice in connection with the sale of the products, unless UNILUX has expressly concluded a written agreement with the Purchaser on a consultancy service in exceptional cases.

2.4 Unless the Purchaser and UNILUX have concluded a different agreement, images, drawings, calculations and other product-, application- or project-related documents that contain expertise requiring protection remain the property of UNILUX. They are also subject to UNILUX’s copyright, even if UNILUX has provided them to the Purchaser; they may not be duplicated or made accessible to third parties without UNILUX’s express prior written consent.

3. Creditworthiness – Surety

In the event of concrete indications of a deterioration in the Ordering Party’s assets after the contract is concluded, or if other facts are available or become apparent after the contract is concluded that justify the assumption that UNILUX’s payment is at risk due to a lack of financial capability on the part of the Ordering Party, UNILUX is entitled to require that the Ordering Party provide a suitable surety and/or to revoke any payment terms granted. If the ordering party is unable to provide the required, reasonable surety within a reasonable period of time, UNILUX is entitled to withdraw from the contract. Existing claims based on deliveries and services rendered or claims due to delay remain unaffected, as does UNILUX’s rights under Section 321 of the German Civil Code (§ 321 BGB).

4. Prices – Payment terms – Offsetting

4.1 UNILUX’s price calculation is based on UNILUX’s price lists valid at the time that the contract is concluded, addenda to these price lists and customer information which provides notification of changes in price, and/or the quotes submitted regarding the property. UNILUX will provide the ordering party with these lists and information on request.

4.2 The invoice amount is payable immediately after invoicing via the SEPA Company Direct Debit Scheme (B2B).

4.3 If it is known or determined after the contract is concluded with the Ordering Party or after delivery that the conditions for an assumed VAT exemption did not exist at the time of delivery or subsequently ceased to apply, the Ordering Party must pay UNILUX the statutory VAT in addition to the agreed purchase price.

4.4 The Ordering Party may only assert its rights to retain and offset if its counterclaims are undisputed, recognised by UNILUX, legally established or closely interrelated with UNILUX’s claim. In addition, the Ordering Party is only entitled to exercise a right of retention if its counterclaim is based on the same contractual relationship.

4.5 A limitation of UNILUX’s statutory rights to refuse performance and right of retention is rejected.

5. Terms of Delivery – Time of Performance

5.1 Unless the ordering party and UNILUX have agreed otherwise, within Germany, the delivery shall take place under DAP terms (delivered to named place of destination/seller pays for the main transport) in accordance with the Incoterms in their respective applicable version (currently Incoterms 2020). The place of delivery under DAP conditions is the location specified in UNILUX’s quote or in UNILUX’s acceptance.
For deliveries outside Germany, the separate “Shipping regulations for exports” apply.
In the event of contradictions between these provisions and the “Shipping Provisions for Export”, the “Shipping Provisions for Export” shall take precedence.

5.2 Partial deliveries are permitted to the extent reasonably acceptable for the Ordering Party.

5.3 The times and dates for UNILUX’s deliveries and services are generally approximate non-binding information, unless UNILUX has agreed a binding time or date for the deliveries and services with the Ordering Party. This requires additional remuneration.

5.4 A binding deadline for the deliveries and services of UNILUX shall only begin once all details of the execution of the contract have been clarified and both parties agree on all conditions to conclude and execute the contract, but not before the Ordering Party has fully provided all the documents, permits and approvals and not before any agreed initial payment is received. The Ordering Party must also fulfil all their obligations in a proper and timely manner so that UNILUX may comply with delivery deadlines. The right to object to the unfulfilled contract remains reserved.

6. Shipping – Packaging costs – Transfer of Risk – Delay in Acceptance

6.1 Shipment generally takes place in delivery zones without packaging costs.

6.2 The risk of accidental loss or deterioration of the products shall be transferred to the Ordering Party upon delivery at the destination (when products are ready for unloading).

6.3 If the Ordering Party is in default of acceptance, the risk of accidental loss or accidental deterioration of the products shall be transferred to the Ordering Party at the time of default of acceptance.

6.4 If the Ordering Party is in default or culpably breaches obligations to cooperate and/or other obligations, UNILUX is entitled to claim compensation for damages, costs and expenses that UNILUX incurs as a result. The right to bring further claims remain reserved.

6.5 If the Ordering Party is in default of acceptance, UNILUX is entitled to demand from the Ordering Party the costs incurred for the storage and/or special transport of the products affected by the delay in acceptance.

7. Unloading – Reusable racks – Load Securing Devices

7.1 Within Germany, the driver will unload the reusable racks with a forklift truck. Outside Germany, the customer is responsible for unloading.

7.2 Reusable racks and load securing devices (in particular, lashing straps; hereinafter referred to as “devices“) are and remain the property of UNILUX. UNILUX is entitled to withdraw the reusable racks and devices from the customer at any time.

7.3 The reusable racks shall only be returned after prior notification by the Ordering Party. The notification must sent at least 24 hours before collection and made by fax. The Ordering Party will be informed of the relevant fax number on request.

7.4 If the Ordering Party retains a reusable rack longer than two weeks from delivery, it must pay UNILUX a rental fee per reusable rack per week commenced from the start of the third week until the notification is received for return. The rental fee is specified in the current UNILUX price list.

7.5 The Ordering Party bears the risk of accidental loss and accidental deterioration of the reusable racks and devices in their possession. The Ordering Party shall be liable for any deliberate or negligent damage or spoiling of the reusable racks and devices for the time that the reusable racks and devices are in their possession.

7.6 In the event of loss or damage to reusable racks and devices, UNILUX shall be entitled to claim from the Ordering Party the cost for reusable racks and devices specified in the current applicable UNILUX price list. The parties shall remain entitled to prove that greater, lesser or no damage has been caused.

8. Quality of Products – Claims for Defects – Duties of Inspection and Notification

8.1 The quality of UNILUX products is conclusively and exclusively derived from UNILUX product documents such as catalogues, product folders, price lists and the Guideline to Assess the Visible Quality of Glass in Buildings (Hadamar guideline) and the guideline Visual Assessment of Surfaces on Composite Window and Door Elements (VFF data sheet), unless a different written quality agreement has been concluded.

8.2 Claims for defects shall not exist (a) in the event of natural wear and tear; (b) in the event of incorrect or negligent handling and care; (c) in the event of excessive wear and tear; (d) if unsuitable equipment and care products are used; (e) in the event of improper storage; (f) if the Ordering Party does not comply with processing, use and maintenance instructions; or (g) if defects are caused by special external influences which the contract does not provide for. If the Ordering Party or third parties carry out inappropriate modifications or maintenance work, there are no claims for defects for these circumstances and their consequences either.

8.3 The statutory regulation on burden of proof always applies, according to which the Ordering Party must demonstrate and prove a defect.

8.4 The Ordering Party agrees with UNILUX that in the event of a subsequent performance claim from the Ordering Party (repair or subsequent delivery), the cheaper variant must be selected, provided that this is not disadvantageous to the Ordering Party.

8.5 Claims for defects relating to all electrical, electronic and mechanical components and elements, paints, varnishes, cleaning agents, care products and sealants shall lapse within one year of delivery. This does not apply if longer periods are prescribed by law. It also does not apply to liability for damages resulting from loss of life, physical injury or harm to health and to liability for damage resulting from a deliberate or grossly negligent breach of duty.

8.6 No liability is accepted for deviations in structures and colours in comparison with exhibits or samples if such deviations lie in the nature of the materials used or are customary and customary in the trade for the materials concerned.

8.7 UNILUX must be notified of any complaints or objections in writing immediately, but no later than 10 days after delivery/provision – in the case of evident defects – or – in the case of hidden defects – immediately after the defect is discovered (usually during installation); otherwise, the assertion of claims for defects is excluded. UNILUX does not agree to any limitation to the Ordering Party’s statutory duties of inspection and notification (in particular as specified in Section 377 German Commercial Code [§ 377 HGB]).

8.8 In the case of notices of defects, the Ordering Party may only withhold payments to an extent (e.g. in the form of debit notes) which is proportionate to the defects that exist. The Ordering Party can only withhold payments if a justified notice of defects is submitted. If the notice of defects is culpably unjustifiable, UNILUX is entitled to claim compensation from the Ordering Party for damages, costs and expenses that UNILUX incurs due to the unjustified notice of defects. Any further claims shall remain unaffected.

8.9 The Ordering Party shall not be entitled to any potential discount if they have withheld payments without justification.

8.10 If UNILUX has been instructed to remedy any complaints which are unjustified, UNILUX shall invoice the related costs and expenses incurred.

8.11 The Ordering Party may only claim compensation in accordance with the following provision (Clause 9).

9. Liability

9.1 UNILUX shall be liable for compensation for damages and compensation for wasted expenditure as per Section 284 German Civil Code (§ 284 BGB) (hereinafter referred to as “compensation“) due to defects in the delivery or service or due to a breach in other contractual or non-contractual obligations, in particular due to tort, only in a case of wilful intent or gross negligence. The above limitation of liability shall not apply in the event of loss of life, physical injury or harm to health, in the case of acceptance of a guarantee or a procurement risk, in the case of a breach in essential contractual obligations and in the event of liability as defined in the German Product Liability Act (ProdHaftG).

9.2 Compensation for a breach in essential contractual obligations shall be limited to compensation for damages typical of the contract that UNILUX should have foreseen as a possible consequence upon conclusion of the contract due to circumstances recognisable to UNILUX. The limitation does not apply where there is wilful intent or gross negligence, or liability is assumed due to loss of life, physical injury or harm to health or due to the acceptance of a guarantee or procurement risk or according to the Product Liability Act.

9.3 Damages typical for the contract as per Section 9.2 above amounts to:
a. per claim: maximum amount is equal to the net value of the goods in the order from which the claim arises;

and

b. in the event of several claims within a calendar year: a maximum of 50% of the net sales for which the Ordering Party purchased UNILUX products and services in the current calendar year.

9.4 Irrespective of the preceding Sections 9.1 and 9.2, when determining the amount of claims for damages against UNILUX, UNILUX’s financial circumstances, the type, scope and duration of the business relationship, any share of the cause and blame on the part of the Ordering Party’s as per Section 254 of the German Civil Code (BGB) must be duly taken into account in favour of UNILUX. In particular, the damages, costs and expenses that UNILUX is obliged to bear must be proportionate to the value of the products supplied by UNILUX or the services provided by UNILUX..

9.5 All limitations of liability apply equally to subcontractors and vicarious agents.

9.6 A change in the burden of proof to the disadvantage of the Ordering Party is not related to the above provisions.

9.7 Essential contractual obligations as defined in Sections 9.1 and 9.2 are those obligations that need to be met to ensure that the contract is duly fulfilled and which the Ordering Party may expect to be fulfilled and may expect to be fulfilled as a matter of usual practice.

10. Force Majeure – Extension of Period of Delivery – Impossibility of Delivery – Availability of Supplies and Raw Materials

10.1 In the event of force majeure, i.e. in the case of unforeseen events over which UNILUX has no influence and for which UNILUX is not responsible (e.g. fire, floods, storms, explosions or other natural disasters, mobilisations, wars, riots, disruptions to operations, legal changes), including those affecting the supply plant or subcontractors or other connected third parties, the delivery and service periods shall be extended for the duration of the conditions causing the delay if these hindrances are demonstrably not merely an insignificant influence on the provision, completion or delivery. This also applies if these circumstances occur during a delay.

10.2 If it is not possible to provide the delivery and service within a reasonable period of time as a result of such events, the Ordering Party and UNILUX shall be entitled to withdraw from the contract in whole or in part. The same applies in the event of a subsequent inability to fulfil the contract for which UNILUX is responsible.

10.3 Claims for damages due to such a withdrawal are not valid. If the party entitled to withdraw intends to exercise the right of withdrawal, they must immediately inform the other party of their intention after they become aware of the scope of the event.

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

11. Retention of Title

11.1 All goods and products supplied by UNILUX shall remain the full property of UNILUX until full payment of any outstanding amounts arising from the business relationship between the Ordering Party and UNILUX. This also applies if the purchase price has been paid for certain goods deliveries designated by the Ordering Party.

11.2 If the validity of this retention of title is dependent on special conditions or formal requirements in the Ordering Party’s country, the Ordering Party is obliged to point this out to UNILUX and ensure that they are fulfilled at its own expense.

11.3 The delivered goods are always processed, mixed or combined for UNILUX as the manufacturer, without any obligations arising for UNILUX as a result. If the (co-)ownership of the goods subject to the retention of title expires due to processing, mixing or combination, it is already agreed now that the ownership or co-ownership rights to the new item shall transfer from UNILUX to UNILUX to the extent of the invoice value of the goods subject to the retention of title. The Ordering Party shall store these goods on behalf of UNILUX free of charge.

11.4 As long as UNILUX retains ownership, the Ordering Party is not entitled to assign or pledge the goods to a third party by way of security. In the event that a third party seizes or impounds property, the Ordering Party shall point out property belonging to UNILUX and inform UNILUX immediately of such circumstances. The Ordering Party shall bear costs for any intervention procedure if claims cannot be made on the petitioning third party.

11.5 The Ordering Party is entitled to process and sell the goods subject to retention of title in their ordinary course of business. The Ordering Party hereby assigns to UNILUX the amounts receivable arising from any resale or other legal reason relating to the goods subject to retention of title to secure UNILUX’s outstanding receivables equal to the invoice amount for UNILUX’s delivery plus a 20% surety surcharge. The Ordering Party is obliged to issue written declarations of assignment upon UNILUX’s request. The Ordering Party is revocably entitled to collect the assigned accounts receivable on behalf of UNILUX in its own name during the ordinary course of business.

11.6 If there is an excess surety which exceeds the value of the secured claim by more than 20%, UNILUX shall be obliged to transfer this amount back at the Ordering Party’s request.

11.7 At UNILUX’s request, the Ordering Party is obliged to provide detailed proof of the amounts receivable from third parties with regard to the goods subject to retention of title.

11.8 In the event of default, UNILUX may disclose the assignment to the third party and collect the payment itself. Alternatively, UNILUX may require the Ordering Party to notify the third party of the assignment with the condition that the third party will pay exclusively to UNILUX up to the amount of the respective outstanding accounts receivable from the Ordering Party to which UNILUX is entitled.

12. UNILUX installation guidelines

The Ordering Party must observe the installation guidelines contained in the respectively current code of practice for installation (Code of Practice for Planning and Implementing the Installation of Windows and Entrance Doors) issued by RAL Gütegemeinschaft Fenster und Haustüren e.V., 60594 Frankfurt, Germany.

13. Jurisdiction – Applicable Law

13.1 The jurisdiction for legal disputes falling within the jurisdiction of local courts is Wittlich District Court and Trier Regional Court for legal disputes falling within the jurisdiction of regional courts. UNILUX is optionally entitled to take legal action in the location where the Ordering Party has their registered office.

13.2 These Terms and Conditions and the entire legal relationship between the Ordering Party and UNILUX shall be governed exclusively by the law of the Federal Republic of Germany to the exclusion of the conflicts-of-law provisions.

Date 12/2019