General Terms and Conditions of Services of U-Tech Gesellschaft für Maschinensicherheit mbH

Version: December 2022

§ 1   Validity of the General Terms and Conditions, hierarchy

  1. The following General Terms and Conditions of Services (“GTCs”) apply to all transactions between U-Tech Gesellschaft für Maschinensicherheit mbH (“U-TECH”) and the Customer, in particular to all deliveries and services performed by U-TECH and to all payments and other Customer duties. Any GTCs deviating from or supplementary to the Customer’s terms and conditions shall not be recognised by U-TECH, unless acknowledged in writing by U-TECH. Unconditional services or acceptance of payment by U‑TECH shall not constitute acknowledgement of the Customer’s terms and conditions, even in the absence of an objection.
  2. Insofar as other contractual provisions in the offer, order confirmation or in signed supply contracts contradict these GTCs, the other contractual provisions shall take precedence. In all other respects, the various provisions shall apply side by side.

§ 2   Conclusion of a contract

  1. Offers from U-TECH are generally non-binding.
  2. In principle, a contract shall only be concluded upon acceptance of the Customer’s order based on an order confirmation by U-TECH in accordance with the contents specified therein.

§ 3   Customer obligations to cooperate

  1. The Customer is responsible for the faultless technical condition and functionality of its equipment and its compatibility with the products and services of U-TECH. This shall also apply to any third party equipment used.
  2. If U-TECH is required to carry out an assembly, the Customer shall provide the necessary items and materials for the installation and commissioning at the installation site free of charge and in perfect condition; these include scaffolding, lifting gear and other equipment, energy and water. This shall also include the provision of the necessary connections, heating and lighting, as well as suitable and lockable rooms for the storage of machine parts, apparatus, materials, tools, etc., and the provision of adequate sanitary facilities for U-TECH’s assembly personnel. Furthermore, the Customer shall take all necessary measures to protect the assembly materials and assembly personnel of U-TECH, in particular all measures required for occupational health and safety.
  3. The Customer may only use the services in accordance with the contract and the law. The Customer shall observe the general safety provisions as well as those set out by the instructions from U-TECH, in particular those in the operating manual and assembly instructions.

§ 4   Guarantees; subcontractors

  1. Guarantees shall apply only in the case of explicit and duly indicated declaration by U-TECH.
  2. U-TECH may also provide services through a subcontractor. The subcontractor must adhere to the agreements made between U-TECH and the Customer.

§ 5   Prices

  1. The agreed prices shall be given in euro. Value added tax or expenses such as transport, packaging and insurance shall not be included in the price unless otherwise agreed. If at the conclusion of the Contract no price has been agreed, the price applicable at U-TECH at that point shall apply.
  2. If after concluding the contract the prices and costs that U-TECH’s costing is based on change, especially in terms of human resources, materials, raw materials, transport or energy, U-TECH shall adjust the pricing. The price adjustment shall be made in accordance with U-TECH’s original costing while retaining the calculated profit and with comprehensible substantiation – without any obligation to disclose the costing. U-TECH shall inform the Customer about the price adjustment without delay. The price adjustment shall be applicable upon receipt of the substantiated notification and shall take effect from the date on which the underlying costs change, but not before receipt of the substantiated notification. If a price increase exceeds five per cent, the Customer shall have a right to withdraw from the contract for two weeks from receipt of the substantiated notification regarding the service affected by the price increase.

Insofar as the change in the underlying costs is due to a circumstance for which U-TECH is responsible and which is contrary to the due care of a prudent business person, no price increase may be made. U-TECH shall not be required to take or seek any action that will lead to a price reduction.

§ 6   Invoice; payment

  1. Invoices from U-TECH are to be paid in full immediately. A discount shall not be granted as a matter of principle.
  2. Unless otherwise agreed, default in payment occurs if the Customer does not pay the issued invoice within 30 days of the invoice date, unless the issued invoice has not yet been delivered, is incorrect, not due or not enforceable at that time. Default in payment may also occur according to the law.

§ 7  Partial performance, delay in performance, force majeure

  1. Reasonable partial performances are permissible. Partial performance is deemed unreasonable if the Customer has no interest in it.
  2. In the event of default in performance, U-TECH’s liability for damages shall be governed exclusively by Section 13 of these GTCs.
  3. Force majeure and other unforeseen, inevitable events for which U-TECH is not responsible shall extend the performance period accordingly (for example, repercussions of war, pandemics, strikes or lawful lockouts, operational disruptions, unforeseeable difficulties in the procurement of materials and energy, obstacles at U-TECH’s suppliers through no fault of their own, transport delays, shortages of labour, energy or raw materials, measures taken by public authorities). In this case, the agreed dates of performance shall also be postponed accordingly. If the force majeure is not only of temporary duration, both contracting parties shall be entitled to withdraw from the performance affected by the force majeure. In this case, claims for damages shall be excluded for lack of fault. U-TECH shall inform the Customer immediately about the start and finish of the force majeure.
  4. The Customer and U-TECH are in agreement that, given the coronavirus crisis that emerged in 2020 and the Ukraine war in 2022, a situation may arise unexpectedly at any time, which through no fault of U-TECH may result in the latter only being able to fulfil its obligations subject to considerably more difficult conditions. In this case, U-TECH shall be entitled to suspend the provision of services for the duration of the adverse conditions until either the adverse conditions end or a solution is worked out with the Customer. If the performance obligations of U-TECH are more than just temporarily suspended, both contracting parties shall be entitled to withdraw from the suspended performance.

§ 8   Acceptance, transfer of risk, default in acceptance

  1. The Customer must accept contractual services as owed or – insofar as owed by law or contract – take delivery of them. Unless otherwise agreed, the transfer of risk shall also take place at this time.
  2. If the Customer defaults in acceptance, U-TECH may demand compensation for the resulting damage, unless the Customer is not responsible for the breach of duty.

§ 9   Reservation of title

  1. All products and materials to be transferred to the Customer shall remain the property of U-TECH until full payment has been made (“reserved goods”).
  2. The Customer must treat the reserved goods with care and insure them adequately at replacement value including against theft, fire and water damage at its own expense.

§ 10 Warranty

  1. In the event of a statutory warranty claim, the following provisions shall take precedence over the law. No warranty case exists, for example, in the case of normal wear and tear and also not in the case of unsuitable, improper or faulty use by the Customer.
  2. Insofar as sales law applies, the Customer shall inspect the product delivered by U-Tech immediately upon delivery. If an inspection reveals a defect, the Customer shall be obliged to notify U-TECH of this immediately, but no later than eight working days after receipt. If a defect is subsequently identified, the Customer shall likewise be obliged to notify U-TECH of this immediately, but no later than three working days afters its discovery. Otherwise the product shall be deemed approved. In all other respects, Section 377 German Commercial Code (HGB) shall apply.
  3. The agreed quality is based exclusively on the performance features and specifications expressly stipulated in the contract. U-TECH shall only assume a warranty above and beyond this, in particular for a specific purpose or for the specific suitability of the services, duration of use or durability, if this has been expressly agreed; otherwise the suitability and usage risk shall lie exclusively with the Customer. A use presumed under the contract exists only if it is expressly stated in the contract, unless the use presumed under the contract is obvious to both parties.
  4. In the event of a warranty claim, U-TECH shall be obliged, at its discretion, to remedy the defect or to deliver a defect-free item (subsequent performance). U-TECH shall bear the expenses necessary for the purpose of subsequent performance, in particular transport, travel, labour and material costs. The bearing of costs shall be excluded insofar as additional costs are incurred due to the transfer of the item to a place other than the place of performance.
  5. If the subsequent performance is unnecessary or impossible, fails or is unjustifiably refused or delayed by U-TECH, the Customer may reduce the purchase price accordingly under the statutory conditions or withdraw from the contract and claim damages under the statutory conditions as well as the conditions set out in Section 13 of these GTCs.
  6. The period of limitation shall commence one year after delivery of the item or – insofar as legally due – after acceptance. In the cases of Sections 438(1)(1 and 2), 438(3), 634a(1)(2 and 3), 634a(3) German Civil Code (BGB), the limitation period set out in these provisions shall apply. If U-TECH is liable for compensation according to Section 13 of these GTCs, the warranty period with regard to the claim for damages shall be governed by the statutory provisions. The regulations of supplier recourse according to Section 445 a German Civil Code (BGB) shall not apply unless the end Customer is a consumer.

§ 11 Costs in the event of unfounded notifications of defects

To the extent that a notification of defects by the Customer is unfounded, U-TECH may charge the Customer for services which U-TECH renders on the basis of such a notification at the Customer’s request or demand in accordance with the prices valid at U-TECH, as well as for any additional expenses (e.g. travel expenses).

§ 12 No warranty for services only

Insofar as U-TECH provides the Customer with services, in particular customer service, training, consulting, etc., no warranty shall be considered under law.

§ 13 Limited compensation liability of U-TECH

  1. If U-TECH, its legal representatives, employees or vicarious agents intentionally or grossly negligently breach an obligation, irrespective of its nature and legal basis, in particular arising from the contractual relationship or in the event of an unlawful act due to intentional or gross negligence, U-TECH shall be liable for the resulting damage to the Customer in accordance with the law.
  2. Insofar as U-TECH, its legal representatives, employees or vicarious agents merely breach an obligation through minor negligence, irrespective of the type and on what legal grounds, in particular arising from the contractual relationship or in the event of an unlawful act due to minor negligence, the Customer’s claims for damages against U-TECH shall be excluded, unless there has been a breach of a material contractual obligation due to minor negligence. In this case, U-TECH’s liability shall be limited to the foreseeable damage typical for the contract. A material contractual obligation in this context is one whose fulfilment is essential to the proper performance of the contract and on whose fulfilment the Customer regularly relies and may rely.
  3. The above exclusions or limitations of liability shall not apply in the case of liability for culpable injury to life, limb or health, in the case of liability for fraudulent concealment of a defect, nor in the case of liability for non-fulfilment of a quality guarantee, nor in the case of liability under the German Product Liability Act (Produkthaftungsgesetz).
  4. The statutory rules on the burden of proof shall remain unaffected.

§ 14 Intellectual property rights

All industrial property rights, in particular trademark, patent, utility model and design rights to the documents, concepts, texts, drawings and designs developed by U-TECH, as well as to the services, shall remain exclusively with U-TECH. In this respect, the Customer may not file any applications for property rights for itself or for third parties.

§ 15 Place of performance, place of jurisdiction, applicable law

  1. The place of performance for all duties of the Parties shall be U-TECH’s headquarters unless otherwise stipulated.
  2. The exclusive place of jurisdiction for all disputes arising from the business relationship shall be the Federal Republic of Germany. The exclusive local place of jurisdiction shall be U-TECH’s headquarters, if the Customer is a merchant, a legal entity under public law or a public fund asset. U-TECH may also appeal to other courts having jurisdiction by law.
  3. The entire business relationship between U-TECH and the Customer shall be governed exclusively by German law, to the exclusion of the UN Convention on Contracts for the International Sale of Goods and international private law.