General terms and conditions
Status: 01.05.2020I. General
1.All deliveries, services and offers of WATEC-Hydro GmbH are made exclusively on the basis of these General Terms and Conditions (GTC). The terms and conditions only apply if the contractual partner is an entrepreneur (§ 14 BGB), a legal entity under public law or a special fund under public law.
2.Our General Terms and Conditions (GTC) shall apply exclusively. Deviating, conflicting or supplementary General Terms and Conditions of Business of our customers shall only become part of the contract if and to the extent that we have expressly consented to their application. This requirement of consent shall apply in any case, for example even if we perform the service to the purchaser without reservation in knowledge of the purchaser's GTC.
3.Individual agreements made with the Buyer in individual cases (including ancillary agreements, supplements and amendments) shall in any case take precedence over these GTC. Subject to proof to the contrary, a written contract or our written confirmation shall be authoritative for the content of such agreements.
4.References to the applicability of statutory provisions shall only have clarifying significance. Even without such clarification, the statutory provisions shall therefore apply unless they are directly amended or expressly excluded in these GTC.
5.The conclusion of the contract requires a written declaration of acceptance on the part of WATEC-Hydro GmbH (order confirmation). Conclusions and agreements only become binding through our written order confirmation. The same applies to additions, amendments or subsidiary agreements.
6.We reserve the property rights and copyrights to all technical documentation (e.g. drawings, plans, calculations, models and computations), other product descriptions or documents - also in electronic form - created for the execution of the contract.
7.Drawings, illustrations, dimensions, weights or other performance data in brochures, circulars, price lists or other publications are not authoritative. They only contain warranties if they have been expressly designated as such by us in writing.
8.We reserve the right to make design changes. However, we shall not be obliged to make such changes to deliveries and services already performed. Deviations from offers and prices or other proposals are only effective if they have been confirmed by us in writing.
II Delivery period and delay in delivery
1.The delivery period is agreed individually or stated by us upon acceptance of the order. If this is not the case, the delivery period is approx. 6-12 months. If the cooperation of the customer is required for the processing, the delivery period shall, however, only commence when this cooperation has been provided in full. Circumstances or events for which WATEC- Hydro GmbH is not responsible (e.g. force majeure, shortage of raw materials or energy, traffic disruptions, war or civil unrest, etc.) shall interrupt the delivery obligation for the duration of the impediment.
2.The occurrence of our delay in delivery shall be determined in accordance with the statutory provisions. In any case, however, a reminder by the buyer is required. If we are in default of delivery, the Buyer may claim compensation for the damage caused by the delay; in the event of slight negligence on the part of the Seller, this claim shall be limited to a maximum of 5 % dof the agreed purchase price. We reserve the right to prove that the buyer has not suffered any damage or that the damage is significantly lower.
3.Partial deliveries are permissible.
4.If we are unable to meet binding delivery deadlines for reasons for which we are not responsible (non-availability of the service), we shall inform the Buyer of this without delay and at the same time notify the Buyer of the expected new delivery deadline. If the service is also not available within the new delivery period, we shall be entitled to withdraw from the contract in whole or in part; we shall immediately refund any consideration already paid by the Buyer. A case of non-availability of the performance in this sense shall be deemed to be in particular the non-timely self-delivery by our supplier if we have concluded a congruent hedging transaction, neither we nor our supplier are at fault or we are not obliged to procure in the individual case.
5.The rights of the Buyer pursuant to Section IX of these GTC and our statutory rights, in particular in the event of an exclusion of the obligation to perform (e.g. due to impossibility or unreasonableness of performance and/or subsequent performance), shall remain unaffected.
III. force majeure
Force Majeure shall be deemed to include all foreseeable and unforeseeable events beyond the reasonable control of the parties affecting the performance of the Contract, such as governmental actions, changes in law, strikes, lockouts or other industrial action, terrorism, wars, riots, civil disturbances, epidemics, Pandemics, lightning, earthquakes, fire, severe weather, forces of nature, floods, sabotage, delays caused by transportation, unavailability of transportation, unavailability of loading or unloading facilities, inability to obtain labor or materials from usual sources, theft, explosions, etc., .. Prices and agreed delivery dates do not take into account any effects due to force majeure or government measures thereon. In case such effects lead to additional costs or delays in the project execution, WATEC-Hydro GmbH shall immediately inform about such effects and take all reasonable measures to minimize them as well as provide a detailed assessment of the additional costs and the effects on the delivery time. The parties shall agree in good faith on reasonable compensation and extension of delivery time. In addition, WATEC-Hydro GmbH shall be entitled to additional costs and/or delivery time extensions which a) are caused by the Client's default and/or b) result from a change in the law including any instructions / restrictions by governmental measures during the term of the contract and affect the execution of the contract.
IV. Transfer of risk
1.In the case of sale by delivery to a place other than the place of performance, the risk of accidental loss and accidental deterioration of the goods as well as the risk of delay shall already pass upon delivery of the goods to the forwarding agent, the carrier or any other person or institution designated to carry out the shipment; this shall also apply if delivery free domicile has been agreed. WATEC-Hydro GmbH shall insure the delivery at the expense of the customer for the cases of partial or total damage, partial or total loss until unloading from the truck at the customer's premises. The claims of the customer due to such events are limited to the insurance benefits. It is expressly pointed out that the damage may exceed the insured maximum amount in individual cases. Otherwise, the risk shall pass to the customer at the latest upon handover of the goods; this shall also apply to partial deliveries. The handover or acceptance is equal if the buyer is in default of acceptance.
2.If the Buyer is in default of acceptance, fails to cooperate or if our delivery is delayed for other reasons for which the Buyer is responsible, we shall be entitled to claim compensation for the resulting damage including additional expenses (e.g. storage costs).
3.The final acceptance shall take place within 14 days after installation and commissioning and shall include a complete check of the technical functions required for operation. Defects that become apparent during acceptance shall be documented in a list of defects to be signed by both parties to the contract.
V. Prices
1.Unless otherwise agreed, WATEC-Hydro GmbH shall be bound by the prices contained in its offer for 90 days from the date of the offer. The prices stated in the order confirmation of WATEC-Hydro GmbH plus the statutory value added tax applicable at the time of the performance of the service shall be decisive. Additional services requested by the customer during the execution of the order will be charged separately. Any assembly costs will be charged according to the time spent on the basis of the hourly rates for the personnel employed at the time of execution in the company of WATEC-Hydro GmbH. The hourly rates result per hour from the offer of WATEC-Hydro GmbH. Arrival and departure times are considered as working time. In addition, WATEC-Hydro GmbH calculates the costs of overnight stays and travel allowances for employees according to the expenses incurred or taking into account the place of deployment of its employees and the distance to the company. The same applies to other travel expenses.
2.Assembly material and small materials will be charged according to expenditure. Items included in offers in this respect are to be regarded as estimates and will be charged according to actual expenditure and evidence.
VI. retention of title
1.Until full payment of all our present and future claims arising from the contract (secured claims), we retain title to the delivered items. If the (co-)ownership of WATEC-Hydro GmbH expires due to combination, it is already agreed now that the (co-)ownership of the customer in the unified object shall pass to WATEC-Hydro GmbH in proportion to the value.
2.For the duration of the retention of title, the purchaser has the obligation to properly store and maintain the goods already delivered.
3.Until revoked, the customer is entitled to sell the delivery items owned by WATEC-Hydro GmbH in the ordinary course of business as long as he is not in default. Pledging or transfer of ownership by way of security is not permitted. The Customer hereby assigns to WATEC-Hydro GmbH by way of security all claims arising from the resale or any other legal reason with regard to these delivery items. Until revoked, WATEC-Hydro GmbH authorizes the Customer to collect the claims assigned to it for its account in its own name. This direct debit authorization can only be revoked if the client does not properly meet his payment obligations.
VII Claims for defects
1.The statutory provisions shall apply to the Buyer's rights in the event of material defects and defects of title (including incorrect and short deliveries as well as improper assembly or defective assembly instructions), unless otherwise stipulated below. In all cases, the special statutory provisions shall remain unaffected in the case of final delivery of the goods to a consumer (supplier's recourse pursuant to §§ 478, 479 BGB).
2.The basis of the liability for defects of WATEC-Hydro GmbH are the agreements made about the quality of the delivery item as well as about the constructional prerequisites and duties to cooperate. As far as the quality has not been agreed upon, it is to be judged according to the legal regulations whether a defect exists or not (§ 434 para. 1 - 2 - sentence 2 and 3, § 633 para. 2 sentence 2 and 3 BGB). However, we do not assume any liability for public statements made by the manufacturer or other third parties (e.g. advertising statements).
3.The purchaser's claims for defects presuppose that he has fulfilled his statutory obligations to inspect and give notice of defects (§§ 377, 381 HGB). If a defect becomes apparent during the inspection or later, WATEC-Hydro GmbH must be notified immediately in writing. The notification shall be deemed to be made without delay if it is made within two weeks, whereby the timely dispatch of the notification shall suffice to meet the deadline. Irrespective of this obligation to inspect and give notice of defects, the Buyer shall notify WATEC-Hydro GmbH in writing of obvious defects (including wrong and short deliveries) within two weeks of delivery, whereby timely dispatch of the notice shall also suffice to meet the deadline. If the purchaser fails to duly inspect and/or notify the defect, our liability for the non-notified defect shall be excluded.
4.The parties are aware that the equipment to be manufactured by WATEC-Hydro GmbH is to be used as part of an electricity production plant described in more detail in the specification. They agree that the claims and rights due to defects refer only to the parts of this power production plant manufactured by WATEC-Hydro GmbH. No warranty is given for the functional efficiency of other parts of the power production plant or the power production plant as a whole. With regard to the functional efficiency of the interfaces, a warranty shall only be assumed insofar as the customer has not deviated from his specifications regarding these interfaces. Claims and rights due to defects are only due to the direct client and are not assignable.
VIII Other liability
1.In particular, WATEC-Hydro and its employees, subcontractors and suppliers shall not be liable to Buyer for: loss of use, loss of profits, loss of income, loss of interest, loss of plant downtime or inability to operate the plant at full capacity, additional costs to maintain operations, customer suits, costs of raising money or loss of use of capital, and special, incidental, indirect and consequential damages.
2.Insofar as nothing to the contrary arises from these provisions, including the following provisions, we shall be liable in accordance with the statutory provisions in the event of a breach of contractual and non-contractual obligations.
3.We shall be liable for damages - irrespective of the legal grounds - within the scope of fault liability in the event of intent and gross negligence. In the case of simple negligence, we shall be liable, subject to a milder standard of liability in accordance with statutory provisions (e.g. for care in own affairs) only
a) for damages resulting from injury to life, body or health,
b) for damages arising from the not insignificant breach of a material contractual obligation (obligation whose fulfillment is a prerequisite for the proper performance of the contract and on whose fulfillment the contractual partner regularly relies and may rely); in this case, however, our liability shall be limited to compensation for the foreseeable damage typically occurring.
4.The limitations of liability resulting from paragraph 3 shall also apply in the event of breaches of duty by or in favor of persons for whose fault we are responsible in accordance with statutory provisions. They shall not apply insofar as we have fraudulently concealed a defect or have assumed a guarantee for the quality and for claims of the Buyer under the Product Liability Act.
5.Due to a breach of duty that does not consist of a defect, the purchaser may only withdraw or terminate the contract if we are responsible for the breach of duty. A free right of termination of the buyer (in particular according to §§ 651, 649 BGB) is excluded. In all other respects, the statutory requirements and legal consequences shall apply.
6.Only the direct client is entitled to claims for damages and they are not assignable.
IX. Statute of limitations
1.Notwithstanding § 438 para. 1 no. 3 BGB and § 634a para. 1 nos. 1 and 3 BGB, the general limitation period for claims arising from material defects and defects of title shall be one year from delivery. Insofar as acceptance has been agreed or is prescribed by law, the limitation period shall commence upon acceptance.
2.However, if the goods are a building, an object which has been used for a building in accordance with its customary use and has caused its defectiveness, or a work the success of which consists in the provision of planning or supervisory services for this, the limitation period shall be 5 years from delivery in accordance with the statutory regulation (§ 438 para. 1 no. 2 BGB, § 634a para. 1 no. 2 BGB). Other special statutory provisions on the limitation period (in particular § 438 para. 1 no. 1, para. 3, §§ 444, 479, § 634a para. 3, § 639 BGB) shall also remain unaffected.
3.The above limitation periods of the law on sales and works shall also apply to contractual and non-contractual claims for damages of the purchaser or orderer based on a defect of the goods or the work, unless the application of the regular limitation period (§§ 195, 199 BGB) would lead to a shorter limitation period in the individual case. Claims for damages of the Buyer or Purchaser pursuant to Clause VIII. Para. 3 Sentence 1 and Sentence 2(a) of these GTC as well as under the Product Liability Act shall, however, become time-barred exclusively in accordance with the statutory limitation periods.
X. Surrogation
If deterioration occurs with regard to the delivery item at the purchaser's, in particular due to fire, natural disasters, accidents, damage by third parties, or if the delivery item is lost as a result, the claims to be paid by the purchaser for this event from third parties, including insurance benefits up to the amount of the claim existing against the purchaser on the basis of the delivery contract, shall be deemed to have been assigned to us. If the claim of WATEC-Hydro GmbH is fully satisfied, the latter shall be obliged to reassign the claim in whole or in part to the extent that WATEC-Hydro GmbH has been satisfied.
XI. Payment
1.Unless otherwise agreed, the following terms of payment shall apply:
30 % dof the order value after order confirmation on the part of WATECHydro GmbH
30 % dof the order value after the expiry of half of the expected delivery time stated in the order confirmation
30 % dof the order value in the case of readiness for delivery indicated by WATEC-Hydro GmbH and possible acceptance in the factory
10% dof the order value after commissioning, but no later than 30 days after readiness for commissioning or 90 days after readiness for delivery of the delivery.
Installation and acceptance shall be the same if, due to circumstances for which the Buyer is responsible (in particular violations of the contractually agreed duties to cooperate, such as obtaining required permits and creating the structural prerequisites), the Seller's performance cannot be fulfilled temporarily or finally, factually or legally. The same shall apply if the Buyer finally or temporarily refuses installation and/or acceptance due to such circumstances.