General Terms & Conditions

(TAC) for Commercial Activity

1. Scope of Validity

(1) All deliveries, services and offers of Uzin Utz Tools GmbH & Co. KG (hereinafter “Uzin Utz Tools”) shall be made exclusively on the basis of these General Terms and Conditions (“TAC”). They form a component of all the con-tracts which Uzin Utz Tools concludes with its contractual partners (hereinafter “cus-tomers”) regarding the deliv-eries or services offered by it. They also apply to all future transactions with the custom-ers, even if they are not agreed upon separately each time.

(2) These TAC only apply to companies within the meaning of § 14 BGB (Bürger-liches Gesetzbuch [German Civil Code]).

(3) Provided that there is nothing to the contrary agreed in writing, these TAC apply to all legal transactions exclusively. The customer recognises them by issuing an order or accepting a delivery. Deviating conditions or con-firmations to the contrary by the customer which were not expressly recognised in writ-ing by Uzin Utz Tools are not binding, even if Uzin Utz Tools does not expressly object to them.

2. Consultation

(1) Consultation by Uzin Utz Tools Tools in the form of advice pertaining to products and services extends exclu-sively to the products and services created by Uzin Utz Tools Tools.

(2) Beyond that, Uzin Utz Tools provides consultation to customers only when explicit-ly requested to do so. Failure to make statements does not constitute consultation.

3. Offer and Conclusion of Contract

(1) Written offers by Uzin Utz Tools are non-binding and without obligation, provided they are not explicitly desig-nated as binding or contain a defined acceptance period. Written offers by Uzin Utz Tools therefore are generally considered invitations to bid, and only become binding up-on a written confirmation of the same by Uzin Utz Tools.

(2) Statements in prospectuses, catalogues and technical documents are not binding; in particular, they do not release the customer from the need to perform its own inspections.

(3) Statements by Uzin Utz Tools regarding the sub-ject of the delivery or service (e.g. weights, sizes, utility value, capacity, tolerances and technical data), as well as rep-resentations of the same (e.g. drawings and illustrations), are only approximations, unless the usability for the contrac-tually prescribed purpose re-quires an exact compliance. They are not guaranteed qual-ity features, but rather de-scriptions or designations for the delivery or service. Nor-mal trade variations, and devi-ations that occur on the basis of legal regulations or repre-sent technical improvements are permissible, provided that they do not impair usability for the contractually prescribed purpose.

(4)  In general, the order placed by the customer repre-sents the offer to conclude the contract. All of the disclo-sures relevant to the execu-tion of the order must be made in the order. Missing, erroneous or incomplete dis-closures are deemed explicitly to not having been agreed upon and do not create any obligation of Uzin Utz Tools in regard to claims concerning fulfilment, warranty or com-pensation for damage.

(5) Orders should be placed in writing; however, they can also be transmitted via telephone or in some oth-er electronic manner, at the customer’s own risk.
(6) Uzin Utz Tools will accept the order within 10 working days of receipt of the order by confirmation of the order, provided that another acceptance period is not prescribed.

(7) When Uzin Utz Tools con-firms the order, the con-tract is deemed as having been concluded, even when its content deviates from that of the order, as with the content of the confirmation, provided that the customer does not immediately object to such confirmation of the order.

4. Contract manufacturing

(1) If the goods are to be manufactured according to drawings, samples or other information provid-ed by the customer, the customer is responsible for ensuring that the rights of third parties, in particular patents, utility models, other industrial property rights and copy-rights are not infringed. The customer indemnifies Uzin Utz Tools against third-party claims arising from any infringement of such rights. In addition, the customer shall as-sume all costs incurred by us as a result of third par-ties asserting the infringement of such rights and Uzin Utz Tools de-fending itself against such claims.

(2) Should results, solutions or techniques emerge in the course of develop-ment work which are ca-pable of being protected in any way, Uzin Utz Tools shall be the sole owner of the resulting property rights, copyrights and rights of use, and Uzin Utz Tools reserves the right to make the corresponding applications for protective rights in its own name and in its own name.

5. Amendments

(1) If the customer wishes to make amendments to the subject of the delivery or ser-vice after conclusion of the contract, then a separate con-tractual agreement must be made for this.

(2)  If the customer with-draws an order before the contract is concluded, then Uzin Utz Tools, without preju-dice to the possibility of mak-ing a claim for higher actual damage, shall be entitled to charge 10% of the delivery or service price for the costs aris-ing due to the processing of the order and for the fore-gone profit. The customer shall reserve the right to prove a lower degree of damage.

(3) In case of consensual amendments to the contrac-tual subject-matter, the deliv-ery or service terms or dates must be agreed anew.

6. Delivery and Delivery Time

(1) Deliveries are made “ex-works” according to Clause EXW of the INCO-TERMS 2010.

(2) If Uzin Utz Tools offers the prospect of times and dates for deliveries and ser-vices, then these shall always be considered mere approxi-mations, unless a fixed time or a fixed date is committed to or agreed upon. If shipment was agreed, the delivery times and delivery dates shall refer to the moment of transfer to the forwarder, freight carrier or other third party entrusted with shipping.

(3) The customer is enti-tled to withdraw from the contract if Uzin Utz Tools is responsible for failure to comply with a fixed delivery date, and a reasonable exten-sion has elapsed without success.

(4) In the case of a sale involving the carriage of goods with a net value of 300.00 € or more, delivery within the Federal Republic of Germany is free of charge.

(5) Orders on call are only accepted with acceptance deadlines. If the acceptance period is not precisely speci-fied, it ends 12 months after conclusion of the contract. The goods are to be accepted in approximately equal monthly quantities. If ac-ceptance does not take place within the agreed period, Uzin Utz Tools shall be free to deliver completed deliveries without further notice or to store them at the expense of the customer. In addition, Uzin Utz Tools is entitled to set the customer a period of grace for acceptance, combined with the threat that we will refuse to accept the goods if the period expires without result. Should the period of grace then expire without result, Uzin Utz Tools may withdraw from the contract in whole or in part by terminat-ing the delivery obligation or, by refusing delivery, claim damages for non-performance.

(6) Uzin Utz Tools is entitled to render the agreed de-livery or service prior to the agreed time. Partial delivery or performance of services is allowed, Par-tial deliveries or services are allowed if
a) the partial delivery is usable for the customer within the scope of the contractual purpose,
b) the delivery of the re-maining ordered goods is ensured and
c) the customer does not incur any significant addi-tional expenditure or ad-ditional costs as a result of this (unless Uzin Utz Tools declares itself willing to assume these costs). Par-tial deliveries can be invoiced separately.

7. Default in Acceptance

(1) If the customer does not accept the goods due to a circumstance for which it is responsible on a permissi-ble/agreed delivery date or upon the expiration of the agreed delivery time, then Uzin Utz Tools may charge for every commenced month storage costs of 0.5%, subject to a total not exceeding 5% of the delivery or service price. The contractual parties remain free to prove higher or lower storage costs. Uzin Utz Tools is authorised to determine a suitable place for safekeeping at the expense and risk of the customer, as well as to insure the delivery or service items.

(2) If Uzin Utz Tools is entitled to demand compen-sation for damage instead of performance, then Uzin Utz Tools can, without prejudice to the possibility of asserting greater actual damages, de-mand 15% of the total price as liquidated damages. The cus-tomer reserves the right to prove a lower degree of damage.

8. Force Majeure

(1) Uzin Utz Tools shall not be liable if delivery is not possible or is delayed and this is caused by force majeure or other events unforeseeable at the time of conclusion of the contract (e.g. business disruptions of all kinds, diffi-culties in procuring material or energy, transport delays, strikes, legal lockouts, short-ages in energy or raw materi-als, official measures, or out-standing, incorrect or untimely delivery by suppliers) for which Uzin Utz Tools is not responsible. If such events render it difficult or impossible for Uzin Utz Tools to deliver or perform a service, and the obstruction is not only tempo-rary in nature, then Uzin Utz Tools shall be entitled to with-draw from the contract. For obstructions of a temporary nature, the delivery or service performance deadlines shall be extended or postponed by the time period of the ob-struction, plus a reasonable period for restarting.

(2) If as a result of the delay it cannot reasonably be expected that the customer accept the delivery or service, it can withdraw from the con-tract by giving Uzin Utz Tools immediate written notice.

(3) If Uzin Utz Tools fore-sees that the goods cannot be delivered within a delivery deadline, then the customer shall immediately be informed thereof in writing; the cus-tomer shall be notified of the reasons for the delay as well as, where possible, of the anticipated delivery date.

9. Payment Conditions

(1)  Provided nothing else has been agreed upon, the agreed prices are understood to be in EURO, ex-works, plus the statutory value added tax, as well as customs, freight, packaging and transportation insurance costs. Import and export duties shall be charged separately. An insurance poli-cy for the goods to be shipped shall be taken out by Uzin Utz Tools only upon request and at the customer’s expense.

(2)  Invoiced amounts must be paid within 30 days without any deduction. Re-ceipt by Uzin Utz Tools is deci-sive for the date of payment. In case of failure to pay, the customer shall be deemed to be in default without further reminder. Discounts and re-bates will only be given under separate agreement.

(3)  Uzin Utz Tools ex-pressly reserves the right to accept bills of exchange or cheques. Bills of exchange and cheques are only accepted subject to the consent of Uzin Utz Tools, and only count as payment after being credited without reservation. Costs for discounts and bills of exchange shall be paid by the customer.

(4)  If Uzin Utz Tools has several outstanding claims against the customer, and payments have not been made by the customer for a certain claim, then Uzin Utz Tools shall be entitled to establish for which of the out-standing claims the payment was rendered.

(5)  In case of payment arrears, deferral or partial payment, Uzin Utz Tools shall be entitled to demand default interest of 9 percentage points above the relevant base interest rate, and to withhold further services until all invoices that are due are settled. Proof of a higher de-gree of damage remains reserved.

(6)  In case of justified doubts regarding the solvency or creditworthiness of the customer, e.g. in case of pay-ment default, sluggish pay-ment methods etc., Uzin Utz Tools shall be entitled to de-mand prepayment or a suita-ble security deposit for the service to be rendered by the customer. If the customer is not ready for this then Uzin Utz Tools shall be entitled to withdraw from the contract after a reasonable extension period, and to demand com-pensation for damages due to non-performance.

(7)  Set-off with counter-claims or retention of pay-ments due to such claims by the customer is only permissi-ble if the counter-claims are undisputed or legally estab-lished.

(8) The payment terms granted shall cease to apply and outstanding claims shall be immediately payable if the opening of an insolvency pro-cedure for the customer’s assets is applied for, the cus-tomer has made incorrect statements regarding its cre-ditworthiness, or other justi-fied doubts regarding solven-cy or creditworthiness of the customer exist.

(9) If the value added tax is not contained in Uzin Utz Tools’s billing based on state-ments of the customer (e.g. in case of “intra-Community supply” in the sense of §§ 4 No.1b in conjunction with 6a UStG (Umsatzsteuergesetz [German VAT ACT]) and Uzin Utz Tools subsequently is charged with a payable VAT amount (§ 6a IV UStG), the customer shall be obligated to pay the appropriate amount to Uzin Utz Tools. This duty exists irrespective of whether Uzin Utz Tools subsequently has to pay value added tax, import sales tax, or compara-ble taxes domestically or abroad.

10. Place of Performance, Risk Transfer, Packaging

(1) The place of perfor-mance for the services stated in the order is Uzin Utz Tools’s place of business or the ex-ternal and/or forwarding warehouse from where the goods are furnished. If noth-ing else has been agreed, the customer shall collect the goods once ready for pickup at Uzin Utz Tools’s place of business. The place of service and performance of the con-tractual duties owed by the customer shall always be the place of business of Uzin Utz Tools.

(2) The risk of destruc-tion, loss or damage to the goods passes to the customer upon receipt of a ready-for-pick-up notice.

(3) If dispatch was agreed to, the risk passes upon the dispatch of the goods or the handover thereof to the transportation company commissioned.

(4) Packaging material and loading aids, such as palettes, shall be provided by Uzin Utz Tools for use only. They must be returned within 30 days of the actual date of delivery in an undamaged condition, freight paid, to Uzin Utz Tools’s place of business or an external and/or forwarding warehouse at the choice of Uzin Utz Tools. If this does not take place, then Uzin Utz Tools shall be entitled as of the 31st day after delivery, to bill for a daily lump sum fee for use of EUR 0.50 plus statu-tory VAT in respect of each leftover item of packaging material and/or loading aids. The overall usage fee to be paid shall, however, in no case amount to more than EUR 25, plus statutory VAT. One-way packaging materials are to be disposed of properly by the customer.

(5) Extra costs for a more urgent dispatch method as required by the customer shall be paid for by the customer. This also applies if it was agreed individually that regu-lar freight costs are assumed by Uzin Utz Tools.

11. Duty of Inspection and Complaint

(1) The items delivered must be inspected carefully and immediately after deliv-ery to the customer or to the third party designated by it.

(2) In case of damage to or loss of the goods during transport, inventory shall be taken immediately, and Uzin Utz Tools shall be informed thereof. Claims arising from any transport damages must be lodged immediately with the forwarder by the customer.

(3) The delivered items shall be deemed as contractu-ally rendered if Uzin Utz Tools does not receive a written notice of defects concerning obvious defects or other de-fects that could be recognised in case of an immediate care-ful inspection, within seven working days of delivery of the delivery items; otherwise within seven working days of discovery of the defect or at an earlier point in time at which the defect was recog-nisable to the customer during normal use of the delivery items without closer inspection.

(4)  If requested by Uzin Utz Tools, the delivery item that is the subject of the com-plaint shall be sent back to Uzin Utz Tools freight paid. After consulting with Uzin Utz Tools about the most eco-nomical mode of shipment, Uzin Utz Tools shall reimburse that expense in case of an authorized notice of defects; this does not apply if the ex-penses increase because the delivery item is located at a different place than the place of intended use.

12. Material and legal Defects

(1) If a defect in delivery or service items from Uzin Utz Tools exists, then Uzin Utz Tools shall be entitled, at its own choice, to either subse-quent improvement, re-placement delivery or credit. This does not apply to claims of recourse according to §§ 445a, 445b BGB, if the last contract in the supply chain is a contract for the sale of con-sumer goods.

(2)  After coordinating with Uzin Utz Tools, the subse-quent improvement can also be undertaken by the cus-tomer. Claims of the customer based on the expenditures required for the purpose of subsequent performance, in particular costs related to transport, methods, work and materials, are excluded if the expenditures increase be-cause the goods were subse-quently brought to another place than the place of busi-ness of the customer. In ac-cordance with this clause, Uzin Utz Tools warrants that the delivery item is free from industrial property rights or copyrights of third parties. Each contractual partner shall notify the other contractual partner immediately in writing if claims are asserted against it on account of the infringe-ment of such rights.

(3) In the event that the object of delivery infringes a third party’s industrial proper-ty right or copyright, Uzin Utz Tools will, at its own discretion and at its own expense, either modify or replace the object of delivery in such a way that the rights of third parties are no longer infringed, but the object of delivery continues to fulfil the contractually agreed functions, or procure the right of use for the customer by concluding a licence agree-ment.  If Uzin Utz Tools does not succeed in doing this with-in a reasonable period of time, the customer is entitled to withdraw from the contract or to reduce the purchase price accordingly. Any claims for damages on the part of the customer are subject to the restrictions set out in Section 13 of these General Terms and Conditions.

(4) In the event of infringe-ments of rights by products supplied by Uzin Utz Tools from other manufacturers, Uzin Utz Tools will, at its dis-cretion, either assert its claims against the manufacturers and suppliers for the account of the customer or assign them to the customer.In such cases, claims against Uzin Utz Tools shall only exist in accordance with this clause if the legal enforcement of the above-mentioned claims against the manufacturers and suppliers has been unsuccessful or, for example as a result of insol-vency, is futile.

(5) The warranty for material defects and defects of title shall not apply if the customer modifies the object of deliv-ery or has it modified by third parties without the consent of Uzin Utz Tools and if the recti-fication of defects is thereby rendered impossible or un-reasonably difficult. In any case, the customer must bear the additional costs of reme-dying the defect arising from the modification.
(6) A delivery of used objects agreed with the customer in individual cases shall be ef-fected to the exclusion of any warranty for material defects and defects of title.

13. Liability

(1) The liability of Uzin Utz Tools for damages, irrespec-tive of the legal basis, in par-ticular due to impossibility, default, deficient or incorrect delivery, breach of contract, culpa in contrahendo and im-permissible action, is restrict-ed in accordance with this Clause, in so far as it is at fault.

(2) The restrictions in this Clause 12 do not apply to the liability of Uzin Utz Tools due to deliberate conduct, for guaranteed quality features, for injury to life, limb or health, or under the Produk-thaftungsgesetz [Product Lia-bility Act].

(3) Uzin Utz Tools shall not be liable in the event of simple negligence on the part of its management bodies, legal representatives, employees or other agents, as long as breach of essential contractual duties is not at issue. Among the essential contractual du-ties are those to effect timely delivery of the delivery item, its freedom from legal as well as such material defects as compromise its functionality or suitability for use more than insignificantly, as well as duties related to consultation, protection and care which should make it possible for the customer to use the de-livery item in accordance with the contract, or which aim to achieve protection of the life or limb of personnel of the customer or protection of their property against signifi-cant damages.

(4) If Uzin Utz Tools is liable for damages in accordance with the preceding paragraph, then this liability shall be lim-ited to damages which Uzin Utz Tools foresaw upon con-clusion of the contract as a possible consequence of breach of contract, or which should have been anticipated when applying the proper business care. Indirect dam-ages and subsequent damag-es that are a consequence of defects in the delivery item can also only be replaced if such damages are typically to be expected in case of use of the delivery item according to its designation.

(5) In case of liability for sim-ple negligence, the replace-ment obligation of Uzin Utz Tools for material damages and further property damages resulting from them is limited to an amount of EUR 15 million per damage event (corre-sponding to the current cov-erage amount of its product liability insurance policy or liability insurance policy), even in cases of a breach of essen-tial contractual duties.
(6) The aforementioned liabil-ity exemptions and limitations apply to the same extent in favour of the management bodies, legal representatives, employees and miscellaneous agents of Uzin Utz Tools.

(7) If Uzin Utz Tools gives out technical information or be-comes active as a consultant and this information or advice does not belong to the con-tractually agreed scope of service owed by it, this shall take place free of charge and to the exclusion of any liability.

(8) If the customer takes re-course against Uzin Utz Tools due to the claims of third par-ties, the liability of Uzin Utz Tools shall be excluded if the customer for its part has lim-ited the liability effectively towards its buyer. The liability of Uzin Utz Tools for recourse claims is excluded if these exceed the statutory claims regarding defects and com-pensation for damages on the basis of an agreement made between the customer and its buyer.

(9) The customer is required to inform Uzin Utz Tools of any claims brought by third parties immediately in writing, and to reserve to Uzin Utz Tools all means of defence and actions related to settlement.

14. Term of Limitation

(1) In the cases of §§ 438 Para. 1 No. 2, 479 and 634 a Para. 1 No. 2 BGB, in case of deliberate intent, of fraudu-lent concealment of a defect, for claims for compensation of damages due to personal damages or the freedom of a person, for claims arising from the Product Liability Act and in case of gross negligent breach of contract, the legally re-quired terms of limitation ap-ply to the claims of the cus-tomer. This also applies to claims of recourse according to §§ 445a, 445b BGB, if the last contract of the supply chain is a contract for sale of consumer goods. In all other cases, the term of limitation for claims and rights due to defects in products, works or services of Uzin Utz Tools, as well as the damages arising from them, lasts one year.

(2) Subsequent perfor-mance measures shall neither impede the term of limitations applicable for the original ren-dering of services nor cause the term of limitation to begin again.

15. Reservation of Ownership

(1) The provisions below serve to secure all existing and future claims of Uzin Utz Tools against the customer deriving from the business relationship existing between them.

(2)  The goods supplied by Uzin Utz Tools to the custom-er shall remain the property of Uzin Utz Tools until all secured claims have been paid in full. The goods as well as the goods covered by the reserva-tion of ownership replacing them under the provisions below are referred to herein-after as the “reserved goods.”

(3) The customer shall keep the reserved goods safe for Uzin Utz Tools free of charge.

(4)  The customer is entitled to process and to sell the re-served goods up to the onset of an enforcement event in the course of ordinary busi-ness transactions. Pledging or assigning security is not permitted.

(5)  In the event of a further sale of the reserved goods, the customer shall assign im-mediately the claim arising from it against the acquirer to Uzin Utz Tools. The same applies to miscellaneous claims which replace the reserved goods or arise otherwise in regard to the reserved goods, such as insurance claims or claims deriving from imper-missible action in case of loss or destruction. Uzin Utz Tools gives revocable authorisation to the customer to collect claims assigned to Uzin Utz Tools in its own name. Uzin Utz Tools may revoke this direct collection authorisation only in case of an enforceable event.

(6) If third parties gain access to the reserved goods, in particular through attachment, the customer shall immediate-ly notify them that they are owned by Uzin Utz Tools and shall inform Uzin Utz Tools in order to facilitate for it the enforcement of its ownership rights. If Uzin Utz Tools so requests, the customer must give all required disclosures about the stock of the reserved goods and about the claims assigned to Uzin Utz Tools, as well as making its customers aware of the assignment. The customer shall support Uzin Utz Tools in all measures that are necessary to protect the ownership of Uzin Utz Tools to the reserved goods, and shall pay the costs resulting from this.

(7) Uzin Utz Tools shall release the reserved goods as well as the items taking their place or claims if their value exceeds the amount of the secured claims by more than 20%. The selection of the items to be released thereafter lies with Uzin Utz Tools.

(8) If Uzin Utz Tools withdraws from the contract as a result of anticontractual behaviour (enforcement event), on the part of the customer – especially in case of payment default -then Uzin Utz Tools shall be entitled to demand su-render of the reserved goods.

(9) The customer’s right to dispose of the goods that are under the Uzin Utz Tools res-ervation of ownership as well as to collect the claims assigned to Uzin Utz Tools ex-pires as soon as it no longer fulfils its payment obligations and/or files an application for the opening of insolvency proceedings. In the afore-mentioned cases as well as in the event of other anti-contractual behaviour of the customer, Uzin Utz Tools shall be entitled to take back the goods delivered under reservation of ownership without a reminder.

16. Confidentiality

(1) The customer shall treat confidential all aspects of the business relationship worthy of protection.

(2) A duplication of the docu-ments left to the customer is only permissible in the con-text of business requirements and provisions related to cop-yright law.

17. Supplementary provisions for machines with WOLFF-IMM

(1) Machines with WOLFF-IMM modules are equipped with a radio module. This records in-tensity of use, duration of use and location data and sends these at regular intervals to Uzin Utz Tools.

(2) The customer declares that he accepts the use of the data by Uzin Utz Tools as well as the other companies which belong to the Uzin Utz Group. The data will be used to improve customer service, to check maintenance intervals and to verify warranty claims in the event of defects. In the event of theft, the data may also be passed on to law en-forcement agencies and insurance companies.

(3) Personal data is not col-lected by the module. The data is assigned to an individ-ual machine in a separately secured database.

(4) The customer must inform Uzin Utz Tools of any resale of the machine and inform the purchaser of the existence and function of the module.

18. Final Provisions

(1) If the customer is a merchant as defined by the German Commercial Code (HGB), 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 contrac-tual relationship shall be our registered office in Ulm, Ger-many. The same applies if the customer is an entrepreneur as defined in § 14 BGB. In all cases, however, we are also entitled to bring an action at the place of performance of the delivery obligation in ac-cordance with these General Terms and Conditions or a prior individual agreement or at the general place of juris-diction of the Customer. This shall not affect any overriding statutory provisions, in particular those relating to exclusive jurisdiction.

(2) For the business relation-ship with the customer, the law of the Federal Republic of Germany applies exclusively, to the exclusion of the United Nations Convention on Con-tracts for the International Sale of Goods dated 11 April 1980 (CISG).

(3)  Should individual portions of these TAC be ineffective for commercial dealings, then the effectiveness of the re-maining provisions shall not be affected by it. In consideration of their bilateral interests and the individual agreement, the contractual partners shall strive to agree on an effective Clause that most closely ap-proximates the economic purpose and legal sense of the original wording.

Note:
The customer acknowledges that Uzin Utz Tools stores data from the contractual relation-ship for the fulfilment of the contract in accordance with Art. 6 of the General Data Protection Regulation (GDPR) and reserves the right to transfer the data to third par-ties, such as insurance com-panies, insofar as this is nec-essary for the fulfilment of the contract.

Uzin Utz Tools AG | Diesel-straße 3 | D-89079 Ulm
As of: July 01, 2020