GTC | AVB
GENERAL TERMS
AND CONDITIONS OF SALE
Our General Terms and Conditions of Sale (GTC) apply exclusively.
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VERKAUFSBEDINGUNGEN
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GENERAL TERMS AND CONDITIONS OF TRADE​ (GTC)
unival group GmbH, Version August 2022
§ 1 SCOPE, FORM
(1) These General Terms and Conditions of Trade (GTC) shall apply to all our business relations with our customers (“Buyer”). The GTC shall only apply if the Buyer is an entrepreneur (§ 14 BGB), a legal entity under public law or a special fund under public law.
(2) The GTC shall apply in particular to contracts for the sale and/or delivery of movable goods (“Goods”), irrespective of whether we manufacture the Goods ourselves or purchase them from suppliers (§§ 433, 650 BGB). Unless otherwise agreed, the GTC in the version valid at the time of the Buyer’s order or, in any case, in the version last notified to the Buyer in text form shall also apply as a framework agreement for similar future contracts without our having to refer to them again in each individual case.
(3) Our GTCS shall apply exclusively. Deviating, conflicting or supplementary General Terms and Conditions of the Buyer shall only become part of the contract if and to the extent that we have expressly consented to their application. This requirement of consent shall apply in any case, for example even if we carry out the delivery to the Buyer without reservation in the knowledge of the Buyer’s GTC.
(4) Individual agreements made with the Buyer in individual cases (including collateral agreements, supplements and amendments) shall in any case take precedence over these GTCS. Subject to proof to the contrary, a written contract or our written confirmation shall be authoritative for the content of such agreements.
(5) Legally relevant declarations and notifications by the Buyer with regard to the contract (e.g. setting of deadlines, notification of defects, withdrawal or reduction) shall be made in writing, i.e. in written or text form (e.g. letter, e-mail, fax). Legal formal requirements and further evidence, in particular in case of doubt about the legitimacy of the declarant, shall remain unaffected.
(6) References to the applicability of statutory provisions shall only be of a clarifying nature. Even without such clarification, the statutory provisions shall therefore apply unless they are directly amended or expressly excluded in these GTC.
§ 2 CONCLUSION OF CONTRACT
(1) Our offers are subject to change and non-binding. This shall also apply if we have provided the Buyer with catalogs, technical documentation (e.g. drawings, plans, calculations, calculations, references to DIN standards), other product descriptions or documents – also in electronic form – to which we reserve property rights and copyrights.
(2) The order of the goods by the Buyer shall be deemed a binding offer of contract. Unless otherwise stated in the order, we shall be entitled to accept this offer of contract within 5 working days days of its receipt by us.
(3) Acceptance may be declared either in writing (e.g. by order confirmation) or by delivery of the goods to the Buyer.
§ 3 DELIVERY PERIOD AND DELAY IN DELIVERY
(1) The delivery period shall be agreed individually or stated by us upon acceptance of the order. If this is not the case, the delivery period is approx. 12 weeks from the conclusion of the contract.
(2) If we are unable to meet binding delivery deadlines for reasons for which we are not responsible (non-availability of the service), we shall inform the Buyer of this without delay and at the same time notify the Buyer of the expected new delivery deadline. If the service is also not available within the new delivery period, we shall be entitled to withdraw from the contract in whole or in part; we shall immediately refund any consideration already paid by the Buyer. A case of non-availability of the performance in this sense shall be deemed to be in particular the non-timely self-delivery by our supplier if we have concluded a congruent hedging transaction, neither we nor our supplier are at fault or we are not obliged to procure in the individual case.
(3) The occurrence of our delay in delivery shall be determined in accordance with the statutory provisions. In any case, however, a reminder by the purchaser is required. If we are in default of delivery, the purchaser may demand lump-sum compensation for the damage caused by the delay. The lump-sum compensation shall amount to 0.5% of the net price (delivery value) for each completed calendar week of the delay, but in total not more than 5% of the delivery value of the goods delivered late. We reserve the right to prove that the purchaser has not suffered any damage at all or that the damage is significantly less than the aforementioned lump sum.
(4) The rights of the Buyer pursuant to § 8 of these GTC and our statutory rights, in particular in the event of an exclusion of the obligation to perform (e.g. due to impossibility or unreasonableness of performance and/or subsequent performance), shall remain unaffected.
§ 4 DELIVERY, TRANSFER OF RISK, ACCEPTANCE, DEFAULT OF ACCEPTANCE
(1) Delivery shall be made ex warehouse, which is also the place of performance for the delivery and any subsequent performance. At the Buyer’s request and expense, the goods shall be shipped to another destination (sale by delivery to a place other than the place of performance). Unless otherwise agreed, we shall be entitled to determine the type of shipment (in particular transport company, shipping route, packaging) ourselves.
(2) The risk of accidental loss and accidental deterioration of the goods shall pass to the Buyer upon handover at the latest. In the case of sale by delivery to a place other than the place of performance, however, the risk of accidental loss and accidental deterioration of the goods as well as the risk of delay shall already pass upon delivery of the goods to the forwarding agent, the carrier or any other person or institution designated to carry out the shipment. Insofar as acceptance has been agreed, this shall be decisive for the transfer of risk. In all other respects, the statutory provisions of the law on contracts for work and services shall also apply mutatis mutandis to an agreed acceptance. The handover or acceptance shall be deemed equivalent if the Buyer is in default of acceptance.
(3) If the Buyer is in default of acceptance, fails to cooperate or if our delivery is delayed for other reasons for which the Buyer is responsible, we shall be entitled to demand compensation for the resulting damage including additional expenses (e.g. storage costs).
For this purpose, we shall charge a lump-sum compensation in the amount of 0,1% of the amount due per calendar day, starting with the delivery deadline or – in the absence of a delivery deadline – with the notification that the goods are ready for shipment. The proof of a higher damage and our legal claims (in particular compensation of additional expenses, reasonable compensation, termination) shall remain unaffected; however, the lump sum shall be credited against further monetary claims. The purchaser shall be entitled to prove that we have not incurred any damage at all or that the damage is significantly less than the above lump sum.
§ 5 PRICES AND TERMS OF PAYMENT
(1) Unless otherwise agreed in individual cases, our current prices at the time of conclusion of the contract shall apply, ex warehouse, plus statutory value added tax.
(2) In the case of sale by delivery to a place other than the place of performance (§ 4 para. 1), the Buyer shall bear the transport costs ex warehouse and the costs of any transport insurance requested by the Buyer. If we do not invoice the transport costs actually incurred in the individual case, a transport cost flat rate (excluding transport insurance) of EUR 1.190.00 shall be deemed agreed. Any customs duties, fees, taxes and other public charges shall be borne by the buyer.
(3) The purchase price shall be due prior to shipment of the goods; however, we shall be entitled at any time, also within the scope of an ongoing business relationship, to accept the order only against advance payment. We declare a corresponding reservation at the latest with the binding quotation.
(4) Upon expiry of the aforementioned payment deadline, the Buyer shall be in default. During the period of default, interest shall be charged on the purchase price at the applicable statutory default interest rate. We reserve the right to assert further damage caused by default. With respect to merchants, our claim to the commercial due date interest rate (§ 353 HGB) shall remain unaffected.
(5) The Buyer shall only be entitled to rights of set-off or retention to the extent that its claim has been legally established or is undisputed. In the event of defects in the delivery, the Buyer’s counter rights shall remain unaffected, in particular pursuant to § 7 para. 6 sentence 2 of these GTC.
(6) If, after conclusion of the contract, it becomes apparent (e.g. by filing for insolvency proceedings) that our claim to the purchase price is jeopardized by the Buyer’s inability to pay, we shall be entitled to refuse performance in accordance with the statutory provisions and – if necessary after setting a deadline – to withdraw from the contract (§ 321 BGB). In the case of contracts for the manufacture of unjustifiable items (custom-made products), we may declare withdrawal immediately; the statutory provisions on the dispensability of setting a deadline shall remain unaffected.
§ 6 RETENTION OF TITLE
(1) Until full payment of all our present and future claims arising from the purchase contract and an ongoing business relationship (secured claims), we retain title to the goods sold.
(2) The goods subject to retention of title may neither be pledged to third parties nor assigned as security before full payment of the secured claims. The Buyer shall notify us immediately in writing if an application for the opening of insolvency proceedings is filed or if third parties (e.g. seizures) seize the goods belonging to us.
(3) In the event of conduct by the Buyer in breach of the contract, in particular in the event of non-payment of the purchase price due, we shall be entitled to withdraw from the contract in accordance with the statutory provisions and/ or to demand surrender of the goods on the basis of the retention of title. The demand for return does not at the same time include the declaration of withdrawal; we are rather entitled to demand only the return of the goods and to reserve the right of withdrawal. If the purchaser does not pay the purchase price due, we may only assert these rights if we have previously set the purchaser a reasonable deadline for payment without success or if setting such a deadline is dispensable according to the statutory provisions.
(4) Until revoked in accordance with (c) below, the Buyer shall be authorized to resell and/or process the goods subject to retention of title in the ordinary course of business. In this case, the following provisions shall apply in addition.
(a) The retention of title shall extend to the products resulting from the processing, mixing or combination of our goods at their full value, whereby we shall be deemed to be the manufacturer. If, in the event of processing, mixing or combining with goods of third parties, their right of ownership remains, we shall acquire co-ownership in proportion to the invoice values of the processed, mixed or combined goods. Otherwise, the same shall apply to the resulting product as to the goods delivered under retention of title.
(b) The Buyer hereby assigns to us by way of security any claims against third parties arising from the resale of the goods or the product in total or in the amount of our co-ownership share, if any, in accordance with the preceding paragraph. We accept the assignment. The obligations of the purchaser stated in paragraph 2 shall also apply in respect of the assigned claims.
(c) The purchaser shall remain authorized to collect the claim in addition to us. We undertake not to collect the claim as long as the purchaser meets his payment obligations towards us, there is no deficiency in his ability to pay and we do not assert the retention of title by exercising a right pursuant to para. 3. If this is the case, however, we may demand that the buyer inform us of the assigned claims and their debtors, provide all information necessary for collection, hand over the relevant documents and inform the debtors (third parties) of the assignment. In addition, in this case we shall be entitled to revoke the purchaser’s authorization to further sell and process the goods subject to retention of title.
(d) If the realizable value of the securities exceeds our claims by more than 10%, we shall release securities of our choice at the Buyer’s request.
§ 7 CLAIMS FOR DEFECTS OF THE PURCHASER
(1) The statutory provisions shall apply to the Buyer’s rights in the event of material defects and defects of title (including wrong delivery and short delivery as well as improper assembly or defective assembly instructions), unless otherwise stipulated below and in § 8. In all cases, the special statutory provisions shall remain unaffected in the case of final delivery of the unprocessed goods to a consumer, even if the consumer has processed them further (supplier’s recourse pursuant to §§ 478 BGB). Claims from supplier recourse shall be excluded if the defective goods have been further processed by the Buyer or another entrepreneur, e.g. by incorporation into another product.
(2) The basis of our liability for defects is above all the agreement reached on the quality of the goods. All product descriptions and manufacturer’s specifications which are the subject of the individual contract or which were publicly announced by us (in particular in catalogs or on our Internet homepage) at the time of the conclusion of the contract shall be deemed to be an agreement on the quality of the goods.
(3) Insofar as the quality has not been agreed, it shall be assessed in accordance with the statutory regulation whether a defect is present or not (§ 434 Para. 1 S. 2 and 3 BGB). However, we shall not be liable for public statements of the manufacturer or other third parties (e.g. advertising statements) to which the purchaser has not referred to us as being decisive for the purchase.
(4) As a matter of principle, we shall not be liable for defects of which the Buyer is aware at the time of conclusion of the contract or is not aware due to gross negligence (§ 442 BGB). Furthermore, the Buyer’s claims for defects shall require that he has complied with his statutory obligations to inspect and give notice of defects (§§ 377, 381 HGB). In the case of building materials and other goods intended for installation or other further processing, an inspection must in any case be carried out immediately before processing. If a defect becomes apparent during delivery, inspection or at any later time, we must be notified of this in writing without delay. In any case, obvious defects shall be notified to us in writing within 10 working days of delivery and defects not apparent on inspection within the same period of time from discovery. If the purchaser fails to make the proper inspection and/or notification of defects, our liability for the defect not notified or not notified in time or not notified properly shall be excluded in accordance with the statutory provisions.
(5) If the delivered item is defective, we may initially choose whether to provide subsequent performance by remedying the defect (subsequent improvement) or by delivering an item free of defects (replacement delivery). Our right to refuse subsequent performance under the statutory conditions shall remain unaffected.
(6) We shall be entitled to make the subsequent performance owed dependent on the Buyer paying the purchase price due. The Buyer shall, however, be entitled to retain a reasonable part of the purchase price in relation to the defect.
(7) The Buyer shall give us the time and opportunity required for the subsequent performance owed, in particular to hand over the goods complained about for inspection purposes. In the event of a replacement delivery, the Buyer shall return the defective item to us in accordance with the statutory provisions. Subsequent performance shall neither include the removal of the defective item nor the re-installation if we were not originally obliged to install the item.
(8) We shall bear or reimburse the expenses necessary for the purpose of inspection and subsequent performance, such as exchange of spare parts and remote support, if there is actually a defect. Otherwise, we may demand reimbursement from the Buyer of the costs incurred as a result of the unjustified request to remedy the defect (in particular inspection and transport costs), unless the lack of defectiveness was not apparent to the Buyer.
(9) In urgent cases, e.g. if operational safety is at risk or to prevent disproportionate damage, the Buyer shall have the right to remedy the defect itself and to demand reimbursement from us of the expenses objectively necessary for this purpose. We are to be informed immediately of such a self-remedy, if possible in advance. The right of self-execution shall not exist if we would be entitled to refuse a corresponding subsequent performance according to the statutory provisions.
(10) If the supplementary performance has failed or a reasonable period to be set by the Buyer for the supplementary performance has expired unsuccessfully or is dispensable according to the statutory provisions, the Buyer may withdraw from the purchase contract or reduce the purchase price. In the case of an insignificant defect, however, there is no right of withdrawal.
(11) Claims of the Purchaser for damages or reimbursement of futile expenses shall also exist in the event of defects only in accordance with § 9 and shall otherwise be excluded.
§ 8 INDUSTRIAL PROPERTY RIGHTS AND COPYRIGHTS
(1) Unless otherwise agreed, we are obligated to provide the delivery free of industrial property rights (in particular patents, designs, trademark and other identification rights) and copyrights of third parties (hereinafter collectively: “Property Rights”) only in the country of the place of delivery.
(2) If a third party asserts justified claims against the customer due to the infringement of property rights by the delivery made by us and used by the customer in accordance with the contract, we shall, at our discretion and at our expense, (a) modify or replace the product concerned in such a way that no third party rights are infringed any more, but the product can still be used as intended, or (b) deliver an alternative, functionally identical or comparable product that does not infringe third party rights or (c) procure the right of use for the customer by concluding a license agreement. If this is not successful within a reasonable period of time, the customer may withdraw from the contract, demand a reduction of the purchase price corresponding to the value of the defect (reduction) or – within the limits of the following § 9 – demand damages instead of performance.
(3) Our aforementioned obligations shall only exist if and to the extent that the customer immediately notifies us in writing of the claims asserted by the third party, does not acknowledge an infringement and all defensive measures and settlement negotiations are reserved for us. If the customer discontinues the use of the delivery for reasons of mitigation of damages or other important reasons, he shall be obliged to notify the third party in writing that the discontinuation of use does not constitute an acknowledgement of an infringement of property rights. If the customer culpably violates his obligations under this paragraph 3, he shall be liable to us for the resulting damage.
§ 9 OTHER LIABILITY
(1) Insofar as nothing to the contrary arises from these GTC including the following provisions, we shall be liable in accordance with the statutory provisions in the event of a breach of contractual and non-contractual obligations.
(2) We shall be liable for damages – irrespective of the legal grounds – within the scope of fault liability in the event of intent and gross negligence. In the case of simple negligence, we shall be liable, subject to statutory limitations of liability (e.g. care in own affairs; insignificant breach of duty), only
- a) for damages resulting from injury to life, body or health,
- b) for damages resulting from the breach of an essential contractual obligation (obligation, the fulfillment of which enables the proper execution of the contract in the first place and on the compliance with which the contractual partner regularly relies and may rely); in this case, however, our liability shall be limited to the compensation of the foreseeable, typically occurring damage.
(3) The limitations of liability resulting from para. 2 shall also apply to third parties as well as to breaches of duty by persons (also in their favor) whose fault we are responsible for according to statutory provisions. They shall not apply insofar as a defect was fraudulently concealed or a guarantee for the quality of the goods was assumed and for claims of the Buyer under the Product Liability Act.
(4) Due to a breach of duty that does not consist of a defect, the Buyer may only withdraw from or terminate the contract if we are responsible for the breach of duty. A free right of termination of the purchaser (in particular according to §§ 650, 648 BGB) is excluded. In all other respects, the statutory requirements and legal consequences shall apply.
§ 10 LIMITATION
(1) Notwithstanding Section 438 (1) No. 3 of the German Civil Code (BGB), the general limitation period for claims arising from material defects and defects of title shall be one year from delivery. Insofar as acceptance has been agreed, the limitation period shall commence upon acceptance.
(2) If the goods are a building or an object which has been used for a building in accordance with its customary use and has caused its defectiveness (building material), the limitation period shall be 5 years from delivery in accordance with the statutory provision (§ 438 para. 1 no. 2 BGB). Other special statutory provisions on the limitation period (in particular § 438 para. 1 no. 1, para. 3, §§ 444, 445b BGB) shall also remain unaffected.
(3) The above limitation periods of the law on sales shall also apply to contractual and non-contractual claims for damages of the Buyer based on a defect of the goods, unless the application of the regular statutory limitation period (§§ 195, 199 BGB) would lead to a shorter limitation period in individual cases. Claims for damages of the Buyer pursuant to § 9 para. 2 sentence 1 and sentence 2(a) as well as pursuant to the Product Liability Act shall become time-barred exclusively in accordance with the statutory limitation periods.
§ 11 USE OF X-RAY INSPECTION EQUIPMENT
(1) Use of baggage X-ray inspection equipment
Announcement of the operation in Germany
Baggage X-ray inspection systems are designed in such a way that the external dose values of the X-ray radiation are below the limits for full-protection devices (< 3µSv/h at a distance of 0.1 m). A prerequisite for the operation of X-ray baggage screening systems is a notification in accordance with § 12 of the Radiation Protection Ordinance (StrSchV), which must be submitted to the supervisory authority responsible for the respective federal state at least 4 weeks before the system is put into operation, unless there is a special regulation for baggage screening systems. The appointment of the radiation protection officer by the radiation protection supervisor must be proven to the supervisory authority as part of the notification and is the responsibility of the radiation protection supervisor.
The radiation protection officer and his or her possible deputies must prove that they have completed a course in the specialist knowledge group R3 in accordance with the guideline for specialist knowledge in radiation protection. Furthermore, the technical qualification must be confirmed and issued by the respective supervisory authority of the state government. A basic level of technical understanding is required as a prerequisite for the successful completion of course R3 and the issuance of the radiation protection qualification. Furthermore, an expert opinion is required, which must be prepared prior to commissioning at the operating site. The expert report must be prepared by a recognized expert who is independent of the vendor, client and operator (e.g. TĂśV) and must be submitted to the responsible regulatory authority as part of the notification or approval process. According to the current status, there is no nationwide type approval for X-ray baggage screening systems supplied by unival as basic, high or full protection devices. For mobile X-ray baggage screening systems, a nationwide approval by the end user is required for operation. Abroad, the respective radiation protection laws of the end user country apply. Compliance with these is the responsibility of the end user.
(2) Use of personal X-ray inspection equipment
Restricted operation in Germany with special permit
The use of personal X-ray inspection systems for the purpose of access control or to search for objects that a person is concealing on or to his body is not permitted in Germany according to Annex 5 to Section 2a Paragraph 3 of the StrSchV, unless the use is based on a law and, taking into account all circumstances of the individual case, is necessary for the performance of sovereign tasks or is absolutely necessary in the area of responsibility of the Federal Ministry of Defense for the purpose of defense or the fulfillment of intergovernmental obligations. Should the special permission from the responsible ministry for the use be available, the legal regulations for the use of X-ray inspection systems for operation in Germany (according to StrSchV) apply in all other respects. Due to their design, personal X-ray inspection systems are neither basic, high nor full protection devices, since the radiation source is directed but not fully protected. It is the responsibility of the end user to mark the correspondingly extended radiation protection, safety and control areas and to monitor compliance. All personnel X-ray testing equipment is tested and certified by independent testing agencies to US ANSI/HPS N43.17-2009 GENERAL USE and/or LIMITED USE standards.
Abroad, the respective radiation protection laws of the end user country apply. The end customer is responsible for compliance with these.
(3) Use of vehicle X-ray inspection equipment
Restricted operation in Germany with special permit
Due to the increased radiation dose, unival vehicle X-ray inspection systems may only be used in Germany with unoccupied vehicles (without drivers, vehicle occupants, passengers, operators, animals, etc.) and require the approval of the respective supervisory authority. Furthermore, the legal regulations for the use of X-ray inspection systems for operation in Germany according to StrSchV apply. unival vehicle X-ray inspection systems are neither basic, high nor full protection devices due to their design, as the radiation source is directed but not fully protected. It is the responsibility of the end user to mark the appropriately extended radiation protection, safety and control areas and to monitor compliance.
In the case of mobile vehicle X-ray inspection systems, the radiation protection area that shifts during ongoing X-ray operation must be observed and strictly adhered to. All unival vehicle X-ray inspection systems are tested and certified by independent testing institutions according to US ANSI/HPS N43.17-2009 GENERAL USE and/or LIMITED USE standard. In foreign countries, the respective radiation protection laws of the end-user country apply. Compliance with these is the responsibility of the end user.
§ 12 CHOICE OF LAW AND PLACE OF JURISDICTION
(1) The law of the Federal Republic of Germany shall apply to these GTC and the contractual relationship between us and the Buyer to the exclusion of international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods.
(2) If the Buyer is a merchant within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, the exclusive – also international – place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be our registered office in Bonn. The same shall apply if the Buyer is an entrepreneur within the meaning of § 14 of the German Civil Code (BGB). However, we shall also be entitled in all cases to bring an action at the place of performance of the delivery obligation in accordance with these GTC or a prior individual agreement or at the general place of jurisdiction of the Buyer. Overriding statutory provisions, in particular regarding exclusive jurisdiction, shall remain unaffected.
unival group GmbH, Version August 2022