1.1 Agreements regarding goods/services shall in all instances be based on these General Terms & Conditions of UNITEC Informationssysteme GmbH (hereinafter: Unitec).
Even if not explicitly indicated when the agreement is drawn up, these General Terms & Conditions apply in all cases (as amended as of the date when the customer makes a declaration; version: as downloadable from www.unitec.de).
They also apply if Unitec, in full knowledge of conflicting provisions or customer provisions that deviate from these ones, unconditionally provides goods/services to the customer.
Any deviations from this Section 1.1 must be set forth in writing.
1.2 Offers made by Unitec and the content thereof are non-binding and subject to confirmation. This also applies if the customer is provided with catalogues, technical documentation, or other product descriptions or documents for which Unitec holds ownership rights and copyright.
When the customer orders goods, this shall be deemed a binding contractual offer. Unless indicated otherwise in the offer, Unitec is entitled to accept the contractual offer within two weeks of receiving it.
Acceptance may be confirmed either in writing (e.g. via an order confirmation) or by supplying the goods to the customer.
Order cancellations require our explicit written approval.
1.3 To be valid, any legally relevant statement or notice sent to Unitec by the customer after an agreement has been drawn up (e.g. deadlines, reported defects, withdrawal notices, price reductions) must be in written form.
2.1 The prices shown in the offer are net prices plus value-added tax. The value-added tax will be charged to the customer separately, in the statutory amount.
2.2 If, between the agreement date and the agreed delivery date, more than four months elapse and after the agreement date there is a change in Unitec’s ordinary listed price or confirmed offer price/agreed price for software/services or an increase in statutory value-added tax, Unitec is entitled to modify the purchase price in light of the change or value-added tax increase.
If, as a result, the purchase price increases by 5% or more, the buyer may withdraw from the agreement, provided it does so in writing within three weeks of receiving the notification regarding the price increase.
2.3 If, after an agreement has been drawn up with a public law entity, a special fund under public law or a merchant for whom the agreement constitutes part of its business operations, there is a change in Unitec’s ordinary listed price or confirmed offer price/agreed price for software/services or an increase in statutory value-added tax, the sale price shall be increased accordingly.
3.1 Delivery deadlines indicated by Unitec are approximate. Unitec is only bound by delivery deadlines if it is explicitly confirmed that they are binding.
3.2 A prerequisite for meeting delivery deadlines is that the customer has punctually supplied all documents, authorisations and approvals, in particular plans, and fulfilled all of its agreed payment conditions and other obligations. If these prerequisites have not been punctually met, deadlines shall be extended as appropriate. This does not apply if Unitec is responsible for the delay.
The definitive date for meeting delivery deadlines is the date on which the goods left the plant, warehouse or dispatch location.
3.3 If delivery is delayed beyond the agreed date, rights arising from this may not be asserted until a deadline of at least two weeks, set by the customer in writing, has passed.
3.4 If performance is impossible for reasons for which Unitec is not responsible, in particular labour disputes or force majeure, the agreed delivery period shall be extended based on the duration of the disruption.
3.5 The customer shall bear the cost and risk of shipping. Risk shall pass to the customer when the goods leave the plant or warehouse also if Unitec uses its own transport methods. If shipping or delivery is postponed at the customer's request, the risk shall be passed on the date on which the goods were ready for shipping. This also applies if the customer is in acceptance arrears.
3.6 If the customer is in acceptance arrears, or fails to cooperate as required, or if delivery is delayed for reasons for which the customer is responsible, Unitec is entitled to claim resulting damages including additional expenses (e.g. warehouse costs).
3.7 Partial performance is permitted. In such cases, each instance of partial performance shall be deemed separate performance.
4.1 Registration: The registration deadline is 7 days before the start of the training course, unless agreed otherwise on a case-by-case basis. Unitec will confirm each registration in writing by sending an order confirmation, which shall be binding upon both sides. Participant places will be assigned when written registration documents are received. If a training course is fully booked up, the registrant will receive a notification and information regarding the next available training course date.
By submitting a registration document, a participant accepts the content of the training course. Unitec reserves the right to modify the content, location, time or scheduling of a training course as necessary. Certain training courses must be discussed and agreed on with Unitec. For training courses, the minimum lead time is 4 weeks, and the minimum number of participants is 4. Aside from this, Sections 1-3 apply.
4.2 Cancellations: If, 14 days before the start of a training course, there are fewer than 4 registrants, Unitec reserves the right to cancel the training course. Furthermore, Unitec reserves the right to cancel a training course due to force majeure (e.g. a trainer is ill), or to use a different trainer. In the event of cancellation, Unitec will offer the next feasible date; beyond this, no further claims may be asserted. If Unitec has not received a written withdrawal 7 working days before the start of a training course, 50% of the price of the training course shall be payable as lump sum damages compensation.
4.3 Scheduling: As a general rule, training courses begin at 9 a.m. and end around 5 p.m. Exceptions are permitted, provided this is agreed between the participants and the trainer. In the case of 5-day training courses and if participants have to travel a long way, the start time on the first day will be 10 a.m. This will be indicated explicitly in the confirmation.
4.4 Billing: see Section 5
4.5 Prerequisites: Unitec bears no responsibility for disadvantages arising from failure to meet basic prerequisites (e.g. basic understanding of how to use a computer). If, for that reason or due to his/her conduct, a participant causes significant hold-ups in the progress of a training course, Unitec reserves the right to ban the participant from the training course, out of respect for the other participants. In such cases, the cost of the training course will be charged in full.
4.6 Company training courses held on site at a company's facilities:
Each participant must have a workstation for the practical parts of the course conducted in a room. For the theoretical parts, the room in which the course is held must have a whiteboard or projection screen and a projector. The lighting in the room must be suitable for projection during daylight. The trainer also requires a workstation and accessories (screen, keyboard, mouse etc.). If requested, we can loan equipment or workstations, in return for a fee. The workstations must have the necessary software in the necessary version given the subject matter of the course. The customer must make the appropriate arrangements for this; Unitec will handle this task in return for a fee if asked to do so. If a training course is held on site, Unitec assumes no liability for the equipment or data on the machines on the date of the training course.
5.1 Unless indicated otherwise, the purchase price is due and payable within 14 days of invoicing and delivery or acceptance of the goods.
5.2 If the payment deadline passes, the customer will be considered in arrears. During arrears, interest at the statutory applicable arrears interest rate is payable on the purchase price.
Unitec reserves the right to assert damages claims over and above this for arrears. Claims to commercial default interest (§ 353 of Germany's Commercial Code [HGB]) asserted against merchants shall remain unaffected.
5.3 The customer has offsetting or retention rights only insofar as its claim is res judicata, acknowledged by Unitec, or undisputed. If there are defects in the goods/services supplied, the customer’s defect rights shall remain unaffected.
5.4 Aside from what is defined in § 354a, Commercial Code, the customer may only transfer claims arising from this agreement to third parties if it has prior written permission from Unitec.
5.5 Unitec explicitly reserves the right to carry out partial billing.
6.1 If, for reasons for which Unitec is not responsible, it is unable to meet a delivery deadline (goods/services are not available), it must immediately notify the customer and simultaneously indicate the anticipated new delivery deadline. If the goods/services are still not available within the new delivery deadline, Unitec is entitled to withdraw wholly or partially from the agreement; it shall immediately reimburse the customer for any consideration already rendered. Unavailability of the goods/services as defined herein means in particular: Unitec’s supplier has not punctually delivered in cases where Unitec has arranged a congruent cover transaction, neither Unitec nor its suppliers are culpable, or Unitec is not obligated to procure goods/services in a given instance.
6.2 If, after the agreement has been drawn up, it becomes apparent that Unitec’s purchase price claim is in jeopardy due to the customer's inability to perform, pursuant to the relevant legislation Unitec is entitled to refuse performance and — if applicable after setting an appropriate deadline — to withdraw from the agreement (§ 321 of Germany's Civil Code [BGB]). If the agreement relates to production of non-fungible items (custom production), Unitec may declare its withdrawal immediately; the relevant legislation regarding dispensing with deadlines shall remain unaffected.
Unitec retains ownership rights and copyright to all circuit diagrams, drawings, drafts, illustrations, descriptions and similar documents. Unless Unitec gives written permission, these documents must not be copied or made accessible to third parties in any other way, and must be surrendered immediately if Unitec so requests. This also applies to documents designated 'confidential'.
8.1 Unitec shall retain ownership of goods until all current and future claims arising from the agreement and an ongoing business relationship (secured claims) have been paid in full.
The goods subject to retention of ownership must not be pledged to third parties or transferred as guarantee until secured claims have been paid in full. The customer must immediately notify Unitec in writing if and insofar as third parties take possession of goods belonging to us.
8.2 Insofar as Unitec agrees with the customer that the goods will be paid for by cheque or bill of exchange, retention of ownership shall also cover the customer's honouring of the bill of exchange accepted by Unitec and shall not expire when the cheque received is credited to account.
8.3 If the customer infringes the agreement, in particular if it fails to pay a purchase price due, Unitec is entitled to withdraw from the agreement pursuant to the relevant legislation or/and demand surrender of the goods based on retention of ownership. The demand for surrender of the goods shall not simultaneously include declaration of withdrawal; instead, Unitec is entitled to merely demand surrender of the goods and to reserve the right to withdraw. If the customer does not pay the purchase price due, Unitec may only assert these rights if first the customer has fruitlessly been set an appropriate payment deadline or if setting such a deadline is not required under the relevant legislation.
8.4 The customer is hereby authorised to resell and/or process the goods subject to retention of ownership as part of its ordinary business operations. In such cases, the provisions below also apply.
The retention of ownership also applies to products created by processing, mixing or combining our goods at their full value, with Unitec deemed the producer. If, as the result of processing, mixing or combining with goods of third parties, their ownership rights can still be asserted, Unitec shall acquire co-ownership based on the ratio of the invoice value of the processed, mixed or combined goods. Aside from this, the same applies to the resulting product as applies to the goods supplied subject to retention of ownership.
The customer hereby transfers to Unitec all claims against third parties arising from the resale of the goods or products, based on the ratio of our co-ownership as defined above. Unitec hereby accepts this transfer. The customer's obligations as defined in Section 8.1 also apply to the transferred claims.
The customer and Unitec are both entitled to collect the claims. Unitec shall refrain from collecting the claims insofar as the customer meets its payment obligations vis-à-vis Unitec, is not in payment arrears, an application for opening of insolvency proceedings has not been filed, and it is not unable to perform in any other way. However, if the customer is unable to perform, Unitec may demand that it provide information regarding the transferred claims and the debtor in question, provide all necessary information to allow collection, supply the accompanying documents and notify the debtor (third party) regarding the transfer.
If the realisable value of the cover exceeds Unitec's claims by more than 20%, we shall release cover (as specified by us) if the customer so requests.
9.1 Unless specified otherwise below, the customer's rights relating to material defects or defects in title (including incorrect delivery or under-delivery) are subject to the relevant legislation.
In all instances, the special statutory provisions concerning end delivery of goods to a consumer (supplier redress pursuant to §§ 478, 479, Civil Code) shall remain unaffected.
9.2 Basically, the agreement regarding the quality of the goods constitutes the basis for defect liability. The following are deemed agreements regarding the quality of the goods: all product descriptions that constitute the subject matter of an individual agreement—it is immaterial whether the product description originates from the customer, the producer or Unitec.
9.3 Insofar as the quality has not been agreed upon, the relevant legislation shall apply when determining whether or not there is a defect (§ 434 Paragraph 1 Sentences 2 and 3, Civil Code). However, Unitec assumes no liability for public statements by the producer or other third parties (e.g. statements in advertisements).
9.4 Defect claims asserted by the customer are based on the assumption that it has fulfilled its statutory duties to inspect and notify (§§ 377, 381, Commercial Code). If, upon inspection or subsequently, a defect becomes evident, Unitec must be notified immediately in writing. Notification will be deemed to have been carried out immediately if it is sent within 2 weeks; to meet this deadline, sending notification in a timely manner shall suffice. Notwithstanding the statutory duty to inspect and notify, the customer must send written notification of obvious defects (including incorrect delivery and under-delivery) within 2 weeks of delivery; to meet this deadline, sending notification in a timely manner shall suffice. If the customer fails to inspect and/or notify in the proper manner, Unitec shall not be liable for the unreported defect.
9.5 If the delivered item is defective, Unitec may initially choose whether to rectify by eliminating the problem (rectify) or to deliver a defect-free item (replace). The right to refuse rectification pursuant to the relevant legislation remains unaffected.
9.6 Unitec is entitled make its due rectification dependent on whether the customer pays the purchase price due. Notwithstanding this, the customer is entitled to retain an appropriate portion of the purchase price commensurate with the defect.
9.7 The customer must give Unitec the necessary time and opportunity to carry out due rectification, and in particular must hand over the faulty goods for inspection. If Unitec chooses to replace the goods, the customer must return the faulty goods to Unitec pursuant to the relevant legislation. Rectification shall not include dismantling/uninstalling the defective item or reassembling/installing it if Unitec was not originally obligated to carry out those tasks.
9.8 If there actually is a defect, Unitec shall bear the costs of testing and rectification, in particular shipping, labour and materials costs (however, it shall not bear the cost of uninstalling and reinstalling the item). However, if it emerges that the customer's request to eliminate the defect was unjustified, Unitec may demand that the customer reimburse the resulting costs.
9.9 If rectification is unsuccessful, or if an appropriate deadline for rectification set by the customer has passed fruitlessly or is not required by law, the customer may withdraw from the purchase agreement or reduce the purchase price. However, it is not entitled to withdraw if the defect is only minor.
9.10 The customer is only entitled to assert claims for damages or reimbursement of wasted expenditure as specified in Section 10, and aside from that is not entitled to assert such claims.
10.1Unless indicated otherwise in these General Terms & Conditions including the provisions below, if Unitec infringes contractual or non-contractual obligations it shall be liable as defined in the relevant legislation.
10.2 Regardless of the legal grounds, Unitec shall be liable for damages if it acted wilfully or with gross negligence. In the event of ordinary negligence, Unitec shall only be liable for the following:
damages arising from damage to life, body or health;
damages arising from infringement of a key contractual obligation (an obligation the fulfilment of which is necessary for ordinary implementation of the agreement and which the contracting partner may and does reasonably expect to be fulfilled); in such instances, Unitec’s liability shall be limited to payment of foreseeable, typical damages.
The above limits on liability also apply to the personal liability of Unitec's employees, agents, representatives and decision-making bodies.
10.3 The limits on liability indicated in Section 10.2 do not apply if the aforementioned persons fraudulently fail to report a defect or provided a guarantee regarding the quality of the goods. The same applies to claims asserted by the customer under Germany's Product Liability Act [ProdHaftG].
10.4 In the event of infringement of an obligation that does not constitute a defect, the customer may only withdraw or terminate if Unitec is responsible for the infringement of the obligation. The customer does not have the unencumbered right to terminate (in particular pursuant to §§ 651, 649 Civil Code). Aside from this, the relevant legislation and legal consequences apply.
11.1 Contrary to § 438, Paragraph 1 No. 3, Civil Code, the general statute of limitations for claims arising from material defects or defects in title is 1 year following the delivery date. Insofar as an acceptance date has been agreed, the limitation period begins on the acceptance date. The following special statutory provisions remain unaffected: the provisions regarding third-party real surrender claims (§ 438, Paragraph 1 No. 1, Civil Code), seller’s fraudulent intent (§ 438, Paragraph 3, Civil Code) and supplier redress in the case of end delivery to a consumer (§ 479, Civil Code).
11.2 The above limitation periods defined in sales law also apply to contractual and non-contractual damages claims asserted by the customer based on a defect in the goods, unless applying the normal statutory limitation period (§§ 195, 199, Civil Code) would result in a shorter limitation period in the case in question.
In all instances, the limitation periods specified in the Product Liability Act shall remain unaffected.
Aside from this, damages claims asserted by the customer pursuant to Section 10 are in all instances subject to the statutory limitation periods.
12.1 The agreement is subject to German law, to the exclusion of UN CISG.
12.2 The place of fulfilment is Hanau.
12.3 The sole place of jurisdiction is Frankfurt, insofar as all parties are merchants or public-law legal entities.
13.1 Changes or amendments to the agreement must be in written form. This also applies to amending or rescinding this clause. The parties hereby agree that any oral agreements which deviate from the agreement must be documented in writing.
Electronic documents in text form do not fulfil the requirement regarding written form.
13.2 If individual provisions of the agreement become invalid, this shall not affect the validity of the other
provisions. The contracting parties shall make every effort to replace the invalid provision with one which in legal and commercial terms approximates as closely as possible to the contractual objectives.