§ 1. General Provisions
1.1 Our terms and conditions of sale shall apply exclusively; we do not recognise any terms and conditions of the customer that conflict with or deviate from our terms and conditions of sale unless we have expressly agreed to their validity in writing. Our Terms and Conditions of Sale shall also apply even if we carry out the delivery to the customer without reservation in the knowledge that the customer’s terms and conditions are contrary to or deviate from our Terms and Conditions of Sale. They shall be deemed accepted at the latest upon receipt of the goods or services.
1.2 Our Terms and Conditions of Sale shall also apply to all future business with the customer, including offers, advice and other ancillary services.
1.3 Technical and operational data on weight, dimensions, other performance and consumption data in our projects, drawings and publications are for general information only, unless reference is made to them in the offer or our order confirmation; this does not, however, constitute a guarantee of a characteristic. We reserve the right of ownership and copyright to cost estimates, drawings and other documents. They may only be made available to third parties with our consent.
1.4 If, after submission of the offer, changes to the contractual obligations arise due to new or amended legal regulations or new requirements of authorities and testing agencies, the contract shall be adapted taking into account the interests of both parties.
1.5 Subsequent amendments and additions to a contract must be made in writing to be effective.
1.6 Consumers within the meaning of these terms and conditions of business are natural or legal persons with whom business relations are entered into, without a commercial or independent professional activity being attributable to them.
Entrepreneurs within the meaning of these terms and conditions are natural or legal persons or partnerships with legal capacity with whom business relations are entered into and who act in the exercise of a commercial or independent professional activity.
Customers in the sense of the terms and conditions are both consumers and entrepreneurs.
§ 2 Offer
2.1 Our offers are subject to change without notice, unless otherwise stated in the order confirmation. Our prices are subject to change 6 weeks after submission of the offer until revocation. Due to the development of steel prices (raw material prices), we must expressly reserve the right to change prices. The contract shall only come into effect with our order confirmation. The price of our order confirmation shall always apply.
§ 3 Prices, terms of payment, securities
3.2 Unless otherwise stated in the order confirmation, the prices are calculated EXW (Ex Works) in EUR. They do not include packaging, freight, insurance and other ancillary costs (storage, third-party inspection). Value added tax at the statutory rate on the day of invoicing shall be added.
Freight and packaging shall generally amount to 2% of the list price (unless otherwise stated in the offer).
3.3 The deduction of a discount requires special written agreement.
3.4 Unless otherwise agreed, payments shall be made without any deduction within 30 days free our bank account.
3.5 Services and spare parts are due for payment immediately after invoicing.
3.6 In case of default of payment or if our claims are endangered by deterioration of the creditworthiness of the purchaser, we are entitled to make our claims due or to demand securities. We are
is also entitled to carry out outstanding deliveries and services only against advance payment or the provision of securities.
3.7 We reserve the right to change our prices appropriately if, after the conclusion of the contract, cost reductions or cost increases occur, in particular due to collective agreements or changes in the price of materials, and if more than 6 months have passed between the conclusion of the contract and the fulfilment of our main contractual obligation. We shall provide the customer with evidence of the changed costs on request.
3.8 The customer shall only be entitled to a right of retention and a right of set-off insofar as the counterclaims are undisputed or have been legally established and the claims are based on the same contractual relationship.
§ 4 Terms of delivery
4.1 The delivery period begins with the date of the order confirmation, but not before receipt and clarification of all necessary technical questions and documents. Compliance with the delivery period presupposes the fulfilment of the contractual obligations of the purchaser, in particular the timely receipt of the due payments. This also includes the provision of all documents and approvals to be procured by the purchaser, the possible release of drawings and the punctual receipt of any agreed down payment as well as the punctual provision of any agreed payment security. A further prerequisite is the timely provision of advance construction and installation services on the part of the customer, in particular the provision of electricity, gas, water and necessary auxiliary personnel free of charge. The customer’s order shall only be deemed accepted when all technical and commercial questions have been clarified and, if necessary, technical drawings/documentation have been released by the customer. In particular the delivery time is calculated from this point in time.
4.2 The agreed delivery dates shall also be deemed to have been met upon notification of readiness for dispatch if the delivery items cannot be dispatched on time through no fault of ours.
4.3 We are entitled to make partial deliveries and to invoice these.
4.4 If we are unable to fulfil our obligations due to the occurrence of force majeure affecting us or our suppliers or subcontractors and which we were unable to avert with reasonable care under the circumstances of the case, we shall be released from our contractual obligations for the duration of the disturbance and to the extent of its effect. Force majeure includes in particular war, civil unrest, interventions by public authorities, forces of nature, acts of God, accidents, unforeseeable operational disruptions, failure to meet delivery deadlines or delivery failures on the part of our suppliers, shortage of labour, energy or raw materials, strikes, lock-outs and traffic disruptions. If the force majeure event lasts longer than 6 months, each contracting party shall be entitled to withdraw from the contract to the exclusion of all further claims.
4.5 If we are in default and the customer suffers damage as a result, he shall be entitled to demand compensation for default. For each full week of delay, this compensation shall amount to 0.5%, but in total not more than 5% of the value of that part of the subject matter of the contract which cannot be used in time or in accordance with the contract as a result of the delay. If we are still in default after the above maximum compensation for default has been reached, the customer may withdraw from the contract after expiry of a reasonable grace period set by him in writing; the same applies if delivery or performance becomes impossible for reasons for which we are responsible.
4.6 A right of withdrawal to which the customer or we are entitled under paragraph 4.4 or 4.5 shall in principle only extend to the part of the contract not yet fulfilled. Any further rights of the purchaser arising from default, in particular claims for damages, are excluded. This exclusion of liability shall not apply in the event of intent or gross negligence on the part of legal representatives or executive employees.
§ 5 Warranty and guarantee
5.1 If there is a defect in the delivery item for which we are responsible and if the purchaser is an entrepreneur, we shall be entitled to choose between remedying the defect or making a replacement delivery. In the event of rectification of the defect, we shall be obliged to bear all applications necessary for the purpose of rectifying the defect, in particular transport, travel, labour and material costs up to the amount of the purchase price, provided that these are not increased by the fact that the object of sale was taken to a place other than the place of performance.
5.2 If the purchaser is a consumer, he shall first have the choice whether subsequent performance shall be effected by repair or replacement. However, we are entitled to refuse the type of subsequent performance chosen if it is only possible at disproportionate cost and the other type of subsequent performance is without significant disadvantages for the consumer.
5.3 If the subsequent performance fails, the customer may, in principle, demand a reduction of the remuneration (abatement) or rescission of the contract (withdrawal) at his discretion. However, in the case of a minor breach of contract, in particular in the case of minor defects, the customer shall not be entitled to withdraw from the contract.
5.4 Entrepreneurs must notify us in writing of obvious defects within 2 weeks of receipt of the delivery item; otherwise the assertion of warranty claims is excluded. Timely dispatch suffices to comply with the deadline.
5.5 Consumers must notify us in writing of obvious defects within a period of 2 months after the time at which the condition of the delivery item contrary to the contract was determined. Receipt of the notification of defects by us shall be decisive for compliance with the deadline. If the consumer fails to inform us, the warranty claims expire two months after the defect has been detected. The consumer bears the burden of proof for the point in time at which the defect was discovered. In the case of used goods, the consumer shall bear the burden of proof for the defectiveness of the item.
5.6 For entrepreneurs, the warranty period is one year from delivery of the delivery item. For consumers it is two years from delivery of the delivery item. In the case of used goods, any warranty
excluded, unless the customer is a consumer. In this case the warranty period is one year from delivery of the delivery item. This shall not apply if the consumer has not notified the defect in due time. (Sections 5.4 and 5.5).
5.7 If the customer chooses to withdraw from the contract due to a legal or material defect after subsequent performance has failed, he shall not be entitled to any additional claims for damages due to the defect. If the customer chooses compensation after subsequent performance has failed, the goods shall remain with the customer if this is reasonable. The compensation for damages is limited to the difference between the purchase price and the value of the defective item.
5.8 In addition, we shall only be liable in accordance with the statutory provisions if the customer asserts claims for damages based on intent or gross negligence, including intent or gross negligence on the part of our representatives or vicarious agents. If we are not accused of intentional breach of contract, the liability for damages is limited to the foreseeable, typically occurring damage.
5.9 We shall be liable in accordance with the statutory provisions if we culpably violate an essential contractual obligation. In this case the liability for damages is limited to the foreseeable, typically occurring damage.
5.10 Otherwise, liability for damages is excluded; in this respect, we are not liable in particular for damages that have occurred to the delivery item itself.
5.11 The product has been designed and manufactured in accordance with industrial standards and is free from material and processing defects. The warranty ends after one year from delivery or readiness for delivery of the product. This also applies if ultra.air gmbh has repaired the product or installed replacement parts within the one-year warranty period.
5.12 The warranty for purchased components included in the scope of delivery is limited to the warranty granted by the manufacturer, but at least 12 months from delivery or readiness for delivery.
5.13 All guarantees regarding the service life of the products are void if the products are not used in the manner specified in our operating instructions.
§ 6 General liability committee
6.1 Any further liability for damages other than that provided for in § 5 is excluded, regardless of the legal nature of the claim asserted. This applies in particular to claims for damages arising from culpa in contrahendo, positive breach of contract or tort.
6.2 Claims for damages due to impossibility remain unaffected. The same shall apply insofar as statutory liability provisions are mandatory.
6.3 Insofar as our liability for damages is excluded or limited, this shall also apply with regard to the personal liability of our employees and vicarious agents.
6.4 The aforementioned limitations of liability do not affect claims of the purchaser arising from product liability or due to injury to life, body or health.
§ 7 Transfer of risk, shipment
7.1 If the customer is an entrepreneur, the risk of accidental loss and accidental deterioration of the purchased item shall pass to the customer upon handover to the forwarding agent or carrier, but at the latest upon leaving the factory, even if partial deliveries are made or if we have taken over other services, e.g. dispatch, installation or Monday.
7.2 If the customer is a consumer, the risk of accidental loss and accidental deterioration of the purchased goods shall pass to the customer upon delivery of the goods.
7.3 For the interpretation of the trade term, the INCOTERMS in the version valid at the time of conclusion of the contract shall apply.
7.4 The means of transport and transport routes are at our discretion. The same applies to the selection of the forwarding agent or carrier.
7.5 Delivery items notified as ready for dispatch must be called off immediately, otherwise we are entitled to store them at our discretion at the expense and risk of the customer and to invoice them as delivered.
7.6 In the case of delivery ex works / carriage forward, the transport costs and the insurance risk shall be borne by the recipient. In this case, the risk is transferred to the purchaser when the goods leave our factory or shipping point.
7.7 Transport damages will only be accepted if a damage report from the carrier – in proper form with a description of the damage – is available and we are notified within the period of 3 working days. In the event of delays in dispatch for which the customer is responsible, the risk shall pass to the customer as soon as he is notified that the goods are ready for dispatch.
§ 8 Retention of title
8.1 In the case of contracts with consumers, we reserve the right of ownership of the purchased item until the purchase price has been paid in full. In the case of contracts with entrepreneurs, we reserve the right of ownership of the object of sale until all claims from an ongoing business relationship have been settled in full.
8.2 If the customer acts in breach of contract, in particular in the event of default in payment, we shall be entitled to withdraw from the contract and then demand the return of the object of sale.
8.3 The customer is obliged to insure the reserved goods at his own expense against theft, breakage, fire, water and other damage for the duration of his obligations to us and to prove this to us upon request. He hereby irrevocably assigns to us all his rights under the relevant insurance contracts until his obligations have been completely fulfilled. We accept the assignment.
8.4 If the customer fails to meet his obligations under the preceding paragraph, we shall be entitled to take out the aforementioned insurance to the extent deemed necessary by us at the customer’s expense, subject to the proviso that we shall be directly entitled to the rights under the insurance contracts.
8.5 In the event of seizure or other interventions by third parties, the customer must notify us immediately in writing so that we can assert rights to the purchased goods against the third party. If the third party is not able to reimburse our costs out of court and/or in court, the customer shall be liable to us for these costs.
8.6 The customer is obliged to maintain the goods subject to retention of title in perfect condition and to have any necessary repairs carried out immediately by specialist companies; he must provide us with information on the goods subject to retention of title at any time, in particular also with regard to the respective location. We shall be entitled to enter the location of the reserved goods at any time; where necessary, the customer shall provide us or our authorised representatives with access to the location of the reserved goods at any time. The Buyer may only sell, pledge, assign by way of security, rent out or otherwise transfer or change the location of the goods subject to retention of title with our prior written consent, or change the location notified to us.
8.7 The purchaser is obliged to inform us immediately of any threat to our property.
8.8 In the event that the purchaser violates the obligation under § 8, we are entitled to demand immediate payment of the entire remaining debt for the reserved goods or to demand securities. If the purchaser does not pay the entire remaining debt within 7 days after a corresponding request by us or if he does not provide the requested securities within this period, his right to use the goods subject to retention of title expires. We shall then be entitled to withdraw from the contract and to demand the immediate return of the reserved goods at the expense of the purchaser, excluding any right of retention. The ordering party hereby irrevocably grants us access to the location of the reserved goods and authorises us to take them back.
8.9 If the customer wishes to resell the purchased goods, he hereby assigns to us all claims in the amount of the final invoice amount of our claims, including the statutory value-added tax, which accrue to him from the resale, against his customer or third party, irrespective of whether the purchased goods have been resold without or after processing. We accept the assignment. The customer remains entitled to collect this claim even after this assignment. Our authority to collect the claim ourselves remains unaffected by this. We undertake, however, not to collect the claim from the third party as long as the customer fulfils his payment obligations, does not fall into arrears and, in particular, no application for the opening of composition or insolvency proceedings has been made or payments have been suspended. If this is the case, we can demand that the customer informs us of the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents and discloses the assignment to his debtors or other third parties.
8.10 The processing or transformation of the object of sale by the customer is always carried out for us. If we process the object of sale with other objects not belonging to us, we shall acquire co-ownership of the new object in the ratio of the value of the object of sale to the value of the other processed objects at the time of processing. The same shall apply to the object created by processing, we d for the object of sale delivered under reservation of title.
8.11 Insofar as a reservation of title is not legally effective to the above-mentioned extent under the legal system of the country of the purchaser, the reservation of title recognised there shall be deemed agreed in its more extensive form. If the protection of ownership of the delivery item in the country of the customer is not guaranteed to the same extent as in Germany, we can demand advance payments or the provision of securities in the amount of the value of the goods. Unless otherwise agreed, securities can only be provided in the form of an irrevocable, confirmed letter of credit or an irrevocable, self-inflicted guarantee of a major bank also established in the Federal Republic of Germany.
§ 9 Place of performance
9.1 The place of performance for our deliveries is Hilden. If we also have to provide services (e.g. assembly), the place of performance for these services is the place where the services are to be provided. The place of performance for the payment obligation is the payment office specified in our invoice.
§ 10 Place of jurisdiction, applicable law
10.1 The law of the Federal Republic of Germany applies exclusively to all legal relations between the customer and us. The provisions of the Vienna UN Convention of 11 April 1980 on Contracts for the International Sale of Goods (UN Sales Convention) shall not apply.
10.2 If the customer is a merchant, the place of jurisdiction for all legal disputes, including proceedings relating to bills of exchange and cheques, shall be Düsseldorf, Federal Republic of Germany. However, we may also sue the customer at the courts of his general place of jurisdiction.
10.3 Should individual provisions of the contract with the customer, including these General Terms and Conditions of Business, be or become invalid in whole or in part, this shall not affect the validity of the remaining provisions. The wholly or partially invalid provision shall be replaced by a provision whose economic success comes as close as possible to that of the invalid provision.
§ 11 Right of withdrawal
11.1 The customer may only withdraw from the contract with the consent of ultraair gmbh. If the customer withdraws from the contract, we reserve the right to charge all costs incurred up to that point plus lost profit. In the case of return of goods in stock, we charge 25% of the net value of the goods for storage. Special and project productions are excluded from exchange.
§ Section 12 Prohibition of export
12.1 The customer assures that he is aware of all national and international regulations prohibiting the export of certain goods. The customer further assures that he will not violate such regulations when exporting the goods delivered by ultraair gmbh.
§ 13 Severability clause
13.1 Should individual provisions be or become invalid, the remaining provisions shall not be affected.