General terms and conditions of ATB WATER GmbH, 32457 Porta Westfalica
§ 1, Field of Application
(1) Our deliveries, performances and offers are carried out exclusively on the basis of these Standard Business Conditions (SBC). Terms of business contradictory to or deviating from our SBC will not be recognised and their inclusion is hereby opposed. An inclusion of the VOB [German construction contract procedures] in this contract does not take place. The - respectively up-to-date – SBC apply also for future business relations even if they are not again expressly agreed.
(2) All agreements which are made for the purpose of the implementation of this contract between the customer and us are to be set down in writing in this contract. “Customers” within the meaning of these SBC are both consumers as well as contractors.
§2, Offer and Contract Conclusion
(1) All offers are for us subject to amendment and are non-binding. Orders must be agreed by us in writing.
(2) The documents belonging to the offer, such as diagrams, drawings, details of weights and dimensions are only approximately authoritative so far as they are not explicitly designated as binding. The supplier retains right of ownership and copyright on cost estimates, drawings and other documents; they may not be made available to third parties.
§ 3, Prices
The prices given in our confirmation of order are authoritative. Additional services are calculated separately. As far as nothing different is given all prices are in €.
§ 4, Delivery and Performance Times
We are not responsible for delays in delivery or performance due to force majeure and due to events which for us make delivery not only temporarily significantly more difficult or impossible – to these belong in particular strikes, lock-outs, official orders etc., also if they occur with our suppliers or sub-suppliers – even with bindingly agreed periods of notice and dates of delivery. We are also not responsible for the previously mentioned circumstances if they occur during an already existing delay. They entitle us to put back the delivery and/or performance by the duration of the delay with the addition of a reasonable start-up time. If the delivery time is extended or if we are released from our obligations, the customer cannot derive any claim for compensation from these. If the hindrance continues for longer than two months, the customer, following reasonable extension, is entitled to withdraw with regard to that part of the contract not fulfilled. We can only refer to the given circumstances if we have informed the customer immediately. In the case of withdrawal by the customer we would reimburse the customer for performances already carried out.
§ 5, Passing of Risk, Place of Fulfilment
With assembly and repair work the passing of risk takes place at the point of delivery. With pure delivery business the risk passes to the customer ex works. If, at the wish of the customer, the dates of delivery, repair or assembly are delayed, passing of the risk is at the point in time at which the meeting of the dates would have been passed. Place of fulfilment for all obligations is the place of registration of our firm.
§ 6, Warranty
(1) In the first instance, if the customer is a business, we have the choice of exercising our warranty by rectification or by replacement delivery. Claims for deficiencies do not exist with insignificant deviation from the agreed characteristics or with serious impairment of usefulness. We have to bear the expenses necessary for the purpose of supplementary performance (e.g. transport, travel, labour and material costs) so far as these do not increase through the object of purchase being taken to a place other than the place of fulfilment. Obvious deficiencies must be shown to us in writing following receipt of the object of the delivery and, with deficiencies which occur later, within a period of two weeks from notice of these; otherwise the assertion of the claim for warranty/company recourse is excluded. To meet the deadline timely posting suffices. The complete burden of proof for all conditions of entitlement concerns the contractor. With deficiencies in components of other manufacturers and suppliers which, for rights (of license) or de facto reasons cannot be corrected by us, we will, at our own choice, enforce warranty claims against the manufacturers or suppliers for invoicing of the customer or assign these to the customer. Warranty claims against us with this type of deficiency only exist under other premises and according to the requirements of these SBC, if the legal enforcement of the above named claims against the manufacturer or suppliers was without success or, for example, due to an insolvency, is futile. Over the duration of the litigation, the limitation of time of the respective warranty claims of the customer against us is suspended.
(2) If the customer is a consumer then in the first instance he has the choice of whether the supplementary performance is to take place through rectification or by replacement delivery. We are, however, entitled to decline accepting the type of supplementary performance chosen if it is possible only with unreasonable costs and the other type of supplementary performance remains without considerable disadvantages for the customer. Claims for damages due to obvious technical deficiencies of the delivered goods are excluded if the consumer does not indicate the deficiency to us in writing us within a period of two weeks following passing of risk.
(3) If the supplementary performance fails, the customer can, at his choice, fundamentally demand abatement of the reimbursement (reduction) or cancellation of the contract (cancellation).
(4) If a deficiency is concerned with our fault, the customer can demand damages under certain premises given in § 8.
(5) For contractors the warranty obligation is one year, for consumers the period of limitation is two years respectively from delivery or assembly by us.
(6) Only the production description applies as fundamentally agreed for the character of the goods. In addition, public statements, promotion or advertising by the manufacturer represent no contractual statement about the goods,
(7) If the customer receives a deficient assembly manual we are obliged solely to supplying an assembly manual free of deficiencies and this also only if the deficiency in the assembly manual conflicts with the correct assembly.
(8) Guarantees within the sense of the German Civil Code are not obtained from us by the customer.
(9) The warranty is not applicable if the customer, without our permission, modifies the goods or has them modified by a third party and, through this, the correction of the deficiency is rendered impossible or unreasonable. In this case the customer has to bear the additional costs for the correction of the deficiency arising from the modification.
§7, Terms of Payment
(1) The customer is obliged to pay, at the latest 20 days after receipt of the invoice, with the exception of invoices for repair and assembly, which are due immediately after their presentation. Following termination of the above named period the customer is in default.
(2) Payment instructions, cheques and drafts are accepted only after special written agreement and only on account of payments taking into account all recovery and discount charges.
(3) The customer is entitled to charge and to retain only if the counterclaim is established as indisputable and valid. This does not apply for the right of retention so far as the counterclaim of the customer is based on a deficient performance. If the customer is a contractor a right of retention due to claims from other contracts is excluded.
§ 8, Liability and Damages due to Negligence
(1) Our liability to claims for damages, regardless for which legal reason, as far as with this in each case it depends on a default, is limited under the terms of this § 8.
(2) We are not liable towards contractors in the case of simple negligence of our agencies, legal representatives, employees or other vicarious agents; in the case of gross negligence of our non-executive employees or other vicarious agents so far as one is not concerned with a breach of obligations essential to the contract. Essential to the contract are obligations for the timely, deficiency-free delivery and installation as well as responsibilities for consultation, protection and care, which are to enable the customer use of the object of delivery according to the contract or serve for the protection of life and limb of personnel of the customer or of the property of the customer from substantial damage.
(3) In addition, the compensation for the contract-typical, predictable damage is limited.
(4) The above limitation of liability does not apply for our liability due to deliberate conduct, for guaranteed characteristics of state, due to injury of life, of the body or of health or in accordance with the product liability law.
§ 9, Retention of Title
(1) Up until the complete implementation of the requirements existing from this contract, all deliveries and services performed remain our property.
(2) As far as, with the customer, one is concerned with a contractor, we reserve title up to the completion of all requirements (including all payment balance demands from the current account), to which we are entitled from every legal ground against the customer now or in the future. The customer may resell the delivered goods in the ordinary course of business so far as no non-assignment is agreed with his/her buyer. The customer already now relinquishes to us all outstanding debts of the amount of the invoice (incl. statutory value added tax), which accrue to him/her from the resale towards his/her buyer or a third person. If the conditional commodity is resold together with objects not belonging to us, without or following processing or mixing, the assignment towards his/her buyer applies only to the amount of the value of the conditional commodity concerned.
(3) A processing or alteration always takes place for us as manufacturer, however without being subject to far-reaching obligations, as they ensue from this contract. If our ownership expires through association, it is now already agreed, that (joint) ownership of the customer in the common object passes to us value pro-rata (invoice value). The customer holds our (joint) ownership in safe custody free of charge.
(4) The customer is to inform us immediately in writing with distraints, attachments, other stipulations or other interventions.
(5) With action by the customer contrary to contract, in particular with delay in payment or with infringement of an obligation in accordance with Paras 2 to 4, we are entitled to withdraw from the contract and to demand the goods therefrom.
§ 10, Final Clauses
The assignment of claims, to which the customer is entitled to from the business relationship with us, is excluded. If the customer is a trader, this does not apply for the assignment of claims for money within the meaning of § 254a of the German Commercial Code (HGB). It holds good exclusively for the law of the Federal Republic of Germany. The application of UN purchasing law is excluded. If the customer is a trader, the place of jurisdiction of our principle office is agreed as place of jurisdiction. Should these SBC contain a gap in regulation, the legally effective regulations, which the contract partners would have agreed according to the economic objectives of the contract and for the purpose of these SBC had they recognised the gap, are considered to be agreed to fill this gap. This/these contract/SBC is/are subject to German law and is/are to be designed according to the German understanding of law. The English version serves for information only and is not a component part of the legal transaction. Therefore, in the case of deviations between the German and the English version only the German version applies.
As of 04/2011