General payment and delivery regulations of UNICAD Konstruktions GmbH, based in Walsrode
§ 1. General
1.1 The following general terms and conditions shall be valid for all offers, sales, deliveries and services of UNICAD GmbH and become the content of the contract. They apply exclusively to entrepreneurs within the meaning of § 14 BGB (German Civil Code). They also apply to all future business conditions, even if they are not expressly agreed again.
1.2 Deviating or supplementary general terms and conditions of business of the customer are hereby expressly rejected by UNICAD. They shall also not apply if the customer has based them on his order or other explanation.
§ 2 Offer and orders
2.1 The offers of UNICAD are permissive, unless they are described as binding in writing. An effective contract is therefore only concluded by confirmation of order from UNICAD or the delivery of the goods. The order confirmation shall be made as soon as the content of the contract has been fixed in all details. Binding drawings and descriptions are to be provided by the customer in advance.
2.2 Drawings, illustrations and measurements as well as other documents which are part of the offers of UNICAD remain their property and are only approximate. Only in the case of express, written confirmation by UNICAD can they become binding.
2.3 The specification of the customer, which is part of the offer, is an integral part of the price and schedule agreements stated. Subsequent changes are indicated in a quotation supplement or order confirmation.
2.4 A separate offer is made for the necessary changes in the tool or design changes, which are calculated at the expense of the customer.
§ 3 Doubtful solvency.
3.1 If UNICAD becomes aware of any circumstances which may give rise to doubts as to the solvency of the customer after conclusion of the contract, UNICAD may make the delivery and performance conditional on the advance payment by the customer. UNICAD may set a reasonable deadline for the advance payment of the delivery and performance and may withdraw from the contract if the advance payment is not received in due time. The customer can afford security through bank guarantee instead of advance payment.
3.2 Any doubts as to the customer’s solvency may be due, inter alia, to the fact that an application for opening insolvency proceedings has been filed against his assets or if he fails to make payment to us or third parties despite a reminder.
§ 4 Prices
4.1 Prices of UNICAD are “ex works”, unless a different agreement has been made with the customer. The packaging costs are not included in the price.
4.2 The statutory value-added tax is not included in our prices and is stated separately in the invoice on the invoice legally valid on the invoice.
§ 5 Payment
5.1 Payments are due immediately upon delivery.
5.2 The customer shall be in default without a reminder by UNICAD if he fails to do so within 30 days after the invoice has been invoiced and delivered.
5.3 If the customer is in arrears with a payment, all his payment obligations resulting from the business relationship with UNICAD – including those for which bills of exchange have been given – are immediately due. In this case, UNICAD is entitled to demand interest from the relevant date on a statutory basis. UNICAD reserves the right to prove higher damages.
5.4 Bills of exchange shall only be accepted on the basis of prior agreement and in the case of discounting without a discount. Payments in the check / exchange process are also accepted for the sake of performance. The payment claim expires only after the bill has been fully paid. Exchange and discount charges are charged separately and are to be paid immediately without deduction.
5.5 The customer shall only be entitled to set-off, even if claims of defect or counterclaims are asserted, if the counterclaims have been legally established, recognized by UNICAD or are not disputed. The customer is only entitled to exercise a right of retention if his counterclaim is based on the same contract.
§ 6 Delivery time
6.1 All of the above delivery dates are non-binding and shall be deemed to be approximate only if they have not been expressly designated as binding by us. The agreed delivery period does not begin before handing over the documents, if any, to be provided by the customer, in particular approvals and releases.
6.2 The originally agreed delivery period shall be extended appropriately if, upon acceptance of the order, changes are made at the customer’s request to the delivery item which preclude compliance with the earlier delivery period.
6.3 If UNICAD is unable to meet an explicitly agreed deadline or is in default due to other reasons, the customer shall grant UNICAD a reasonable grace period. After expiry of this grace period, the customer is entitled to withdraw from the contract.
6.4 If UNICAD is temporarily or completely impossible or significantly impeded as a result of force majeure or other exceptional and indefinite circumstances, the agreed delivery time shall be extended by the duration of the performance impediment. The same applies to a period of time stipulated by the law or by the customer for the services, in particular for post-delivery delays.
6.5 Prior to expiry of the delivery time or period of performance extended pursuant to paragraph 3 of this clause, the customer is not entitled to either rescind the contract or to claim damages. If the performance impediment lasts for more than two weeks, both the customer and UNICAD are entitled to withdraw from the contract, insofar as the contract has not yet been implemented. If the customer is entitled to withdraw from the contract by contract or by law (for example, because of a lack of interest), this right shall remain unaffected.
6.6 In the case of a possible delay in delivery or impossibility of the performance, as far as it is not based on willful intent or gross negligence, claims for damages of all kinds are excluded, provided that no damage is caused by the injury to body, life, physical integrity or health.
6.7 The risk of accidental loss and the accidental deterioration of the delivery item shall be transferred to the customer upon delivery of the delivery item at UNICAD, which is immediately notified to the customer in writing. If the customer wishes the dispatch of the goods to be delivered, the risk is transferred to the freight forwarder, freight carrier or other person responsible for execution of the dispatch, even if we have accepted the shipping costs in exceptional cases. In the case of partial deliveries this regulation applies accordingly. The risk also passes to the customer when he is in default.
6.8 Delivery shall be subject to correct and timely self-deliveries. If UNICAD has concluded a cover transaction with a sub-supplier for the performance of the contract and does not comply with its supplier’s obligation, then UNICAD is entitled to terminate the contract.
§ 7 Shipping
7.1 The shipment is made for the account of the customer. The risk is transferred to the consignment, even if freight-free delivery has been agreed and / or the shipping is carried out with our own vehicles. UNICAD is not obliged to provide transport insurance.
7.2 Unless expressly agreed otherwise in writing, UNICAD is entitled to partial deliveries to the extent reasonable, which are calculated individually.
7.3 As soon as the goods are ready for dispatch, the acceptance obligation of the customer begins. The customer shall be notified immediately in writing of the readiness for dispatch.
§ 8 Warranty / Liability
8.1 The customer has to examine the received goods for completeness, transport damage, obvious defects, condition and their characteristics. Obvious deficiencies are to be reproached by the buyer immediately, ie without culpable delay from delivery of the contract object in writing UNICAD.
8.2 UNICAD shall not be obliged to make a warranty if the customer has not made a manifest defect in writing in due time. If a defect to be represented by UNICAD is present and has been notified in writing by the customer in due time, UNICAD shall be obliged – subject to the exclusion of the customer ‘s rights to terminate the contract or reduce the price – to supplementary performance unless UNICAD, Refusal of the supplementary performance. The customer shall grant UNICAD a reasonable period for subsequent performance for each individual defect.
8.3 The supplementary performance can be made after the choice of the customer by removing the defect or delivery of a new product. UNICAD is entitled to refuse the type of supplementary performance chosen by the customer if it is only associated with disproportionate costs. During the supplementary performance the price reduction or withdrawal from the contract by the customer is excluded. The second unsuccessful attempt to rectify the defect has failed. If the supplementary performance has failed or UNICAD has refused the supplementary performance in its entirety, the customer may, at his discretion, demand a reduction of the purchase price (reduction) or declare the rescission of the contract.
8.4 Claims for damages to the following conditions due to the defect can only be asserted by the customer if the supplementary performance has failed or the supplementary performance of UNICAD is refused. The right of the customer to assert further damages claims against the following conditions shall remain unaffected.
8.5 UNICAD is fully liable for any intentional or grossly negligent breach of duty as well as for damages resulting from a breach of life, body or health in accordance with statutory provisions. Furthermore, UNICAD is only liable if the breach of the contractual obligation is of material significance for the achievement of the purpose of the contract and only to a limited extent to the amount of typically foreseeable damage.
8.6 The limitation of liability pursuant to paragraph 5 of this clause shall apply mutatis mutandis to claims for damages other than contractual claims, in particular claims for tortious acts, with the exception of the claims under the Product Liability Act.
8.7 Insofar as UNICAD has given a quality and / or durability warranty with respect to the goods or parts thereof, UNICAD is also liable under this guarantee. UNICAD shall only be liable for damage resulting from a lack of the guaranteed quality or durability but not directly on the goods, if the risk of such damage is clearly covered by the quality and durability guarantee.
8.8 UNICAD shall also be liable for damage caused by simple negligence as far as this negligence concerns the violation of such contractual obligations, the compliance of which is of particular importance for the achievement of the purpose of the contract (cardinal obligations).
However, UNICAD is only liable to the extent that the damages are typically connected with the contract and foreseeable. In the case of simple, negligent violations of non-contractual subsidiary obligations, UNICAD shall not be liable. The limitations of liability contained in clause 8.5 also apply insofar as the liability for the legal representatives, executive employees and other vicarious agents of UNICAD is affected.
8.9 A further liability is excluded without regard for the legal nature of the asserted claim. Insofar as the liability of UNICAD is excluded or restricted, this also applies to the personal liability of employees, employees, employees, representatives and vicarious agents.
§ 9 Reservation of title
9.1 UNICAD reserves the title to the goods (reserved goods) until receipt of all payments from the contract. The goods delivered will not be transferred to the customer until the customer has fulfilled all his liabilities arising from the business relationship, including additional claims, claims for damages and redemption of checks and bills of exchange. In the case of the check-change procedure, the retention of title in all its forms listed here does not expire with the check payment, but only with the redemption of the bill of exchange.
9.2 The customer shall immediately notify UNICAD in writing of all access by third parties, in particular of enforcement measures and other impairments of his property. This also applies if an application for opening insolvency proceedings is submitted to the client’s assets or if there is otherwise a risk of impairment. The customer shall replace UNICAD with all damages and costs arising from a breach of this obligation and the necessary measures for protection against access by third parties.
9.3 If the customer fails to comply with his payment obligation despite a warning from UNICAD, UNICAD may demand the surrender of the goods still in their possession without prior setting of a deadline. The customer pays the arising transport costs. In the attachment of the reservation object by UNICAD, there is always a rescission from the contract. UNICAD is entitled to use the reserved goods for their exploitation. The proceeds from the sale are offset against our outstanding receivables.
9.4 If, in the case of delivery to the foreign country in the importing country, the measures for the above-mentioned retention of title or the other rights specified by UNICAD are required, UNICAD shall notify UNICAD thereof and carry out such measures at its expense. If the right of the importing country does not permit a reservation of title, but UNICAD permits other rights to be retained on the security item, UNICAD can exercise all rights of this type. Insofar as an equivalent guarantee of the claims against the customer is not achieved by this, the customer is obliged to provide UNICAD at his expense other collateral on the delivered goods or other collateral.
§ 10 Place of Performance
The place of performance for delivery and payment is Walsrode.
Special conditions for the area of mold making / tool making
§ 1 Manufacture or modification of tools
The following special conditions apply to contracts which concern the production or modification of tools, in particular injection molds, as well as mold constructions and components. They apply in addition to the other general provisions.
1.1 Unless otherwise agreed, the contract includes, in addition to the production and delivery of the tool, the transmission of a 2D assembly drawing, a parts list, a user manual and documentation. No additional delivery of data, especially 3D data, is owed. The same applies to individual drawings and production tolerances. Insofar as, in individual cases, due to a special agreement, 3D data, production tolerances or individual drawings are transmitted to the customer, he / she undertakes to use the data / tolerances / drawings solely for the use of the contract object, in particular not to use them for the production of further tools or to pass them on to third parties.
In the production of new injection molds the payments are due as follows: 40% upon receipt of the order confirmation, 50% after receipt of the initial samples (first falling plastic parts), 10% after release of the tool. To the extent that the option has been agreed that advance payments are secured by means of bank guarantee, this can only be granted with payment amounts of more than € 100,000.00.
Upon request, the customer will issue a confirmed letter of credit in euros, the costs of which will be borne by him.
Unless delivery terms have been agreed upon, UNICAD reserves the right to provide delivery periods of up to 6 months.
If a formal acceptance has been agreed with the customer, this must be declared immediately, if the delivery and the performance were carried out according to the contract.
Irrespective of this, the delivery item shall be deemed to have been accepted if the customer fails to notify in writing within two weeks of the initial samples being made known to him by UNICAD in writing, which considerably limits the usability of the delivery item.
1.2 In the absence of a written agreement to the contrary, the costs of the acceptance including any travel and subsistence costs are borne by the customer.
1.3 Design and other technical documentation provided by the customer for the manufacture of the delivery item shall be checked by UNICAD for the completeness and plausibility of the given conceptual solution and design. However, a check for detailed deficiencies and risk factors is excluded. Should there be any limitations to the delivery item due to such unrecognizable defects, these are the responsibility of the customer.
1.4 If the development of the delivery item is taken over by the customer, the clear specifications, defined in product drawings, specification or specification, must be presented to us.
1.5 Upon completion of the development and design documentation, these will be made available to the customer for review and approval. The necessary production steps are only initiated upon the written declaration of the purchaser’s approval.
1.6 Delays in the release for which the customer is responsible shall be extended by the delivery period accordingly.
1.7 The contractual partners shall exchange information on technical and constructive changes to the delivery item before and during the planning and production of the delivery item in writing. These become an integral part of the contractual agreement. As a service, UNICAD keeps the electrodes used in the tooling for shaping by erosion at a cost of up to 2 years. Unless otherwise stipulated in the tool contract, these electrodes are subsequently destroyed in the absence of any other agreement. Since the electrodes are subject to wear and tear, no liability is assumed for their defect-freeness in the event of agreed delivery to the customer.
1.8 In so far as UNICAD guarantees a certain number of shots for tools, this refers to the fact that, in normal use, the tool is generally suitable for producing the said number of parts. This requires both the proper, careful, use, as well as adequate and sufficiently frequent maintenance. A guarantee on wear parts as well as on the same quality or quantity of the produced parts is not connected. Irrespective of the quantity already produced, the warranty is excluded with the expiry of one year from the delivery date.
1.9 In the event of early termination, cancellation or other termination at the request of the Customer, UNICAD shall be entitled to invoice the Customer on a pro rata basis, based on its cost calculation, insofar as UNICAD has not set an important reason for canceling the contract . For the lost profit related to the overall order, UNICAD also calculates a flat-rate of 5% of the order sum.
Both parties reserve the right to prove in individual cases that the difference to the agreed remuneration and to what UNICAD saves expenses due to the abolition of the contract or to have acquired its labor force or acquiesced maliciously by means of a different connection is reduced or higher Reimbursement.
1.10 If the customer does not accept the goods, UNICAD shall be entitled to withdraw from the contract or to demand compensation due to non-fulfillment after setting a deadline of 14 days. In the latter case, UNICAD is entitled to claim a lump-sum claim for damages amounting to 20% of the agreed purchase price. Proof of a higher or a lower loss remains reserved to both parties.
A defect does not exist in the case of commercial deviations, in particular with respect to dimensions and weight indications, performance details, the color tone in the case of varnishing and coloring of, in particular, plastic parts, in particular in comparison with color cards or color samples of UNICAD.
1.11 Molds, tools and other manufacturing equipment remain the property of UNICAD, even if they have been charged to the customer in whole or in part.
The customer may process the goods, in which UNICAD reserved the property, within the framework of the ordinary course of business and mix it with other objects, unless the customer is in default of payment or has ceased payment. In the case of processing, mixing, blending or connection, it has already been agreed that UNICAD shall be entitled to a co-ownership share in the new product or product volume resulting from the processing, mixing, blending or connection, the value of the reserved goods in relation to the value of the other Processing, mixing, blending or connection. The customer shall store the new item or the total quantity resulting from the processing, the mixed, blended or connected items for UNICAD.
The customer may dispose of the commodity in which UNICAD has reserved ownership or UNICAD co-ownership, within the framework of the ordinary course of business, unless the customer is in default of payment or has ceased payment. He may not pledge or surrender the goods.
A sale to the foreign country is only permitted with the prior written consent of UNICAD. If the customer sells reserved goods, UNICAD already assigns to the purchaser all rights arising from the sale against all of its claims with all collateral, collateral, and proprietary rights. UNICAD may require the customer to notify the assignment to its customers and provide UNICAD with all the information and documents necessary to collect them. The customer may, however, collect the claim assigned to UNICAD as long as he is not in default or has terminated the payment.
If the customer’s claims arising from the resale of reserved goods are included in a current account, then the customer will already assign his claim for payment from the respective or the recognized balance, to the extent that receivables from the resale of the reserved goods are contained therein . If UNICAD is only entitled to co-ownership of the goods sold, then the assignment mentioned above shall only apply to the value of its co-ownership.
If goods in which UNICAD has reserved the title or co-ownership of UNICAD is sold together with other goods at a total price, the aforementioned assignment shall only apply to the value of the invoice value of its reserved goods or to the value of its co-ownership. If the customer receives a check or bill of exchange for the sale of the reserved goods, UNICAD already passes the check and bill of exchange until all their claims have been repaid. He undertakes to keep the check or bill of exchange for UNICAD carefully. The provisions of the preceding paragraph shall apply mutatis mutandis.
§ 1 Data processing
1.1 The customer agrees that UNICAD processes the data relating to the business related to the business relationship in accordance with the Federal Data Protection Act for the purpose of fulfilling its own business purposes, in particular storing or transferring it into a credit protection organization insofar as this is done within the scope of the purpose of the contract or Their legal interests are required and there is no reason to believe that the customer’s legitimate interest in the exclusion of the processing, in particular the transmission of the data, prevails.
1.2 If the customer provides drawings, models or samples for the execution of the contract, he may be responsible for infringement of the third party’s protective rights.
If a third party invokes rights to which it belongs and prohibits the use of UNICAD, UNICAD shall be entitled to terminate the work without examination of the factual and legal situation. The customer will be informed immediately. The customer will release UNICAD for any claims arising from copyright, trademark or patents, unless UNICAD is responsible for the intellectual property rights themselves.
1.3 Property rights and copyrights of any cost estimates, designs, design proposals, data carriers, software and similar documents made available by UNICAD are reserved. This also applies in particular to any data made available in the framework of the contract fulfillment, in particular 3D data, as well as to production tolerances and individual part drawings. These documents and data may be made available to third parties only with the express prior written consent of UNICAD. This applies in particular to documents and data which are referred to as “confidential”.
§ 1 Severability clause, written form
Amendments and supplements to the contract or these general terms and conditions require written form to be effective. Should a regulation of these General Terms and Conditions of Delivery and Payment be or become invalid or impracticable, this shall not affect the effectiveness of the General Terms and Conditions of Business.
§ 2 Jurisdiction and applicable law.
1.1 The contractual relationship between the customer and UNICAD shall be governed exclusively by the law of the Federal Republic of Germany, even if the customer has his domicile and place of business abroad. The application of the uniform law on the international purchase of movable property as well as the law on the conclusion of international purchase agreements on movable property is excluded, to the extent permitted by law.
1.2 The customer is not entitled to assign claims from this contract without the consent of UNICAD.
1.3 The court of jurisdiction is Walsrode. However, UNICAD is also entitled to sue the customer at its general court of jurisdiction.
§ 1 Dimensions – Tolerances – Drawdowns
1.1 UNICAD can represent all the dimensions and tolerances required in the drawings. UNICAD can not, of course, accept the warranty for default, which is based on the geometry of the articles. Here, in addition to article geometry, the process parameters play a decisive role. In the tool itself, these delays are generally not to be prevented.
1.2 UnicCAD works according to the 3-D model and basically assumes that all dimensions are set to “center tolerance”. Article adjustments in the area of tolerance, as well as deviations of the drawing level to the article model, are introduced by the customer and are not part of the offer or the lead time. The shrinkage is determined by the customer.
1.3 The pull-out bevels for the coarse or erosion surface must already be inserted in the article model. In principle, UNICAD does not guarantee the demoulding of articles with such surfaces. Any recommendations made by UNICAD regarding such conicities do not constitute a guarantee for the demoulding-free demoulding. For change requests, or modified article models, the area of the change is marked in color by the customer in the 3-D model.
§ 2 Surface
2.1 The viewing surfaces of the articles are designed by UNICAD in the tool so that no “impermissible irregularities” are visible. UNICAD explicitly points out that sewing is not an unacceptable irregularity, but a phenomenon which occurs naturally in injection molding.
2.2 It is also a general understanding that material accumulations can lead to injection sites. The control of the articles with regard to such material accumulations and their elimination is the task of the article constructor. An investigation by UNICAD with regard to incidental and binding seams takes place only upon agreement. The tool construction is left to the customer free of charge and for an indefinite period for exclusive use in his own home, but remains the property of UNICAD. UNICAD is to be informed when passing on to third parties, and UNICAD reserves the right to prohibit the transfer. Except
No third parties within the meaning of this agreement are affiliates within the meaning of Article 93 Stock Corporation Act. A confirmation of the article drawings will only take place under the restrictions set out above. Any acknowledgment of the purchasing conditions of the customer is also subject to the above limitations.