(Last updated 06/2020)
I. General provisions
Our deliveries, services, and offers are provided exclusively on the basis of these terms and conditions. Therefore, these terms and conditions apply to all future business relationships, even if they are not expressly agreed to subsequently. These conditions shall be considered accepted at the latest upon receipt of the goods or services.
Any general purchasing conditions of the purchaser shall not be accepted.
In accordance with the provisions of the General Data Protection Regulation (GDPR) and German Federal Data Protection Act (BDSG – new), we hereby inform the purchaser that we process the personal data necessary to carry out the business relationship with the help of electronic data processing procedures, and that we only transmit such data internally within the company.
Our offers are non-binding. Delivery contracts and all other agreements (including ancillary agreements), as well as declarations by our representatives, are legally binding for us only with our written confirmation. In particular for custom productions, we reserve the right to make technical changes. However, we are nob obligated to make such changes to previously delivered products. Images, drawings, dimensions and weights or other performance data are binding only if this is expressly agreed to in writing. We reserve the our ownership rights, protected rights, and copyrights to all images, calculations, drawings and diagrams, drafts, software descriptions and other documents. The purchaser may duplicate such documents or transmit them to third parties only with our written consent. They must be returned to us promptly at our request. Business mail printed out using data processing systems (such as order confirmations, invoices, credit notes, payment reminders) is legally binding even without a signature.
1) Our prices are net prices ex works or from the warehouse, and do not include packaging, freight and VAT. Unless expressly included in the offer, they do not include costs for setup, assembly, installation, and training. The prices valid according to our pricing list as of the date of delivery shall apply to contracts for which no prices are agreed. Partial deliveries shall be calculated separately, unless otherwise expressly agreed.
2) We reserve the right to change prices accordingly up to the date of delivery in case of changes to material prices and personnel costs. However, this does not apply to delivery terms of more than 4 months, or for pricing adjustments up to 10%. In case of higher rates, a new pricing agreement shall be required. If no such agreement is concluded, we are entitled to withdraw from the contract through written notification within 14 days.
IV. Payment conditions
1) Unless payment conditions have been agreed at the time the contract was concluded, payments are made on the following schedule: 30 % when the contract is granted, 60 % when the delivery is ready for shipment or when payment is received before delivery from the factory/warehouse, 5 % upon commissioning, or at most 6 weeks after delivery, and 5 % upon acceptance, or at most 2 weeks after commissioning.
2) The purchaser can only offset payments against claims that are undisputed or that have been established in a court of law.
3) We are not obligated to accept bills of exchange or checks. Credit memos for bills of exchange and checks shall be issued with value date on which we can dispose over the exchange value.
4) In case of delayed payment, we will charge default interest in the statutory amount. We reserve the right to assert further damages. If payment conditions are not complied with, if it is not possible to redeem checks or bills of exchange, if payments are halted, or if there are any circumstances that could reduce the credit-worthiness or solvency of the purchaser, then all claims shall be due immediately. Furthermore, we are entitled to make any outstanding deliveries only in return for advance payment, or to withdraw from the agreement after setting a reasonable grace period, and to request claims for damages instead of payment.
(5) Otherwise, the following provisions of clause IX apply to claims for damages by the purchaser.
V. Retention of ownership
1) Our deliveries are carried out only subject to a retention of ownership (reserved goods). Ownership shall be transferred to the purchaser only once they have satisfied all of their liabilities related to our delivery of goods, including all outstanding balances. This applies even if payments are made on specially designated claims.
2) Any processing or restructuring is carried out for us as a manufacturer, without this resulting in any obligation for us. If goods delivered by us are mixed with or connected to other objects, the purchaser shall transfer their (co-)ownership of the resulting objects to us, in the ratio of the invoice value of our reserved goods to the invoice value of the other goods used.
3) The purchaser may sell or use our reserved goods only in the normal course of business. Pledging or transferring such goods as a security is not permitted. The purchaser hereby already transfers claims resulting from the resale or for any other legal reason (reuse, illegal action) to the reserved goods (including all balance claims) to us in full as a precaution.
4) The purchaser is entitled to collect the claims assigned to us. If the purchaser falls into default of payment or ceases making payments, or if there is a motion made for insolvency or settlement proceedings or if such proceedings are opened against the purchaser, or if the purchaser otherwise falls into financial difficulties, we can revoke the entitlement to collect claims. The purchaser must inform us promptly of seizure, confiscation, or other disposition or intervention by third parties.
5) If the purchaser falls into default of payment, we are entitled to request the return of the reserved goods and to obtain direct possession to said goods, either ourselves or through a third party, regardless of where they are located. The purchaser is obligated to return the reserved goods to us. Furthermore, the purchaser is obligated to provide us with the information and documents necessary for us to assert our rights.
6) If the recoverable value of the securities to which we are entitled under the above provisions exceeds the value of our claims by more than 10 %, we are obligated to release excess securities at our discretion, upon request to do so by the purchaser.
VI. Terms for delivery / default
1) Delivery dates should be understood as approximate. Delivery terms generally begin only after complete clarification of all technical and commercial details significant for carrying out the order, and after the purchaser has provided advance payment promptly. We will only fall into default if the service is due, and a written warning has been issued. The date that goods are sent from the factory or warehouse shall be considered the delivery date.
2) We will not be responsible for delivery and service delays, even for deadlines and terms that have been agreed as binding, due to force majeure or events that make it significantly more difficult or impossible for us to complete delivery on more than a temporary basis – including, in particular, strikes, lockouts, operational disruptions, delays in deliveries of significant raw and auxiliary materials, even if they impact our own suppliers. Such events shall entitle us to delay the delivery by the length of the interference plus a reasonable lead time, or to withdraw from the agreement in whole or in pat. If the delivery time is extended, or if we are released from our delivery obligation, the purchaser cannot derive any claims for damages against us because of this. However, we can only invoke the aforementioned circumstances if we inform the purchaser of them promptly.
3) We are entitled to complete partial deliveries. Each partial delivery shall be considered an independent transaction.
1) Shipping shall be carried out on the account of the purchaser.
2) We will decide on the shipping type and route, means of transportation and packaging as well as other safeguards at our discretion. We are entitled, but not obligated to insure deliveries in the name of and on the account of the purchaser.
3) The risk shall be transferred to the purchaser once the shipment has been handed over to the person carrying out the transport, or once it has left our factory or warehouse for the purpose of shipment.
4) If the purchaser violates its duties of collaboration (for instance by not promptly issuing a call or denying acceptance), we are entitled, after setting a grace period which passes without result, to store the goods at the cost and risk of the purchaser ad to request reimbursement for any damages we incur in this respect (in particular storage costs), including additional expenses.
5) Furthermore, after the grace period passes without result, we are also entitled to invoice the ordered goods.
6) If the above requirements are fulfilled, the risk of accidental destruction or deterioration of the purchased goods shall be transferred to the purchaser at the time it falls into default of acceptance or payment.
7) The goods shall then be considered accepted.
8) Our right to assert claims for damages due to a breach of duty or claims for damages in lieu of payment shall remain unaffected.
9) Goods shall be unloaded at the cost of the purchaser.
VIII. Material defects
1) Goods shall be delivered free from fabrication and material defects. Defect claims shall not exist for insignificant deviations from the agreed characteristics, or insignificant issues that interfere with usability.
2) Guarantees for the characteristics and durability of the delivered objects shall be considered granted only if we have declared the guarantee as such expressly and in writing.
3) Defect claims must be asserted promptly and in writing, and are excluded if we have not received such claims within 2 weeks after receipt of the delivery. Defects that cannot be discovered within this term even following a careful review must be reported to us promptly, at the latest 2 weeks after they are discovered.
4) If the delivered goods have a defect, the cause of which already existed at the time of transfer of risk, we will either repair the defect within a reasonable time period or correct it by delivering goods that are free from defects (supplementary performance), at our discretion. If the purchaser denies this, or if modifications or repairs are made to the goods about which defect complaints have been submitted, then we are free from our liability for defects.
5) If the supplementary performance fails after two attempts, or if it is not completed within a reasonable grace period set for us by the purchaser, the purchaser can reduce the purchase price or withdraw from the agreement.
6) Damages resulting from errors in planning by third parties shall not justify any defect claims. Any obligation to review planning services carried out by third parties shall be excluded. Likewise, damages resulting from incorrect or defective installation, commissioning, handling, operation, or maintenance, or from the use of materials other than those specified (replacement parts, wear parts, operating materials, oils, etc.) shall not justify any defect claims. The same applies to damage due to overloading or corrosion.
7) There shall be no liability for normal wear and tear.
8) Due to the large number of technical and design influences that exist in each individual case, deviations in the effectiveness of the cogeneration unit, or an economic return that is below expectations will depend on the actual circumstances on site. The company has no influence over these, so such deviations shall not be considered material defects. Information on efficiency is always subject to a certain range of tolerance, due to deviations in measurement, fluctuating framework conditions, and fluctuations in fuel properties. Efficiency levels of up to 90 % are achievable with respect to the primary energy in cogeneration units. The specific quantity of heat that can be used depends on the technical design of the overall system. Please note that the value for economic efficiency resulting from using cogeneration units is dependent on the operation and use of the devices in each individual case. Because of this, the economic return that can be achieved by the purchaser is not considered part of the contract. This applies in particular to any tax advantages of the purchaser. We hereby expressly declare, by way of clarification, that the purchaser bears the sole risk of usage.
9) Only the direct purchaser shall be entitled to claims due to defects against the seller, and such claims are not assignable.
10) Claims by the purchaser due to expenses necessary for supplementary fulfillment or rescission after withdrawing from the contract, in particular transportation, commuting, work and material costs, are excluded if expenses increase because the delivered object was installed at a difficult to access location. The same applies if the delivered object was installed outside of the Federal Republic of Germany.
11) The purchaser shall only have claims for recourse against us in accordance with Sec. 478 BGB (German Civil code) Recourse by a company) if the purchaser has not concluded any agreements with its own purchasers that go beyond the statutory defect claims.
12) The statute of limitations for defect claims is 12 months, starting from delivery of the goods or acceptance of work, or 18 months from the notification that goods are ready for delivery, or a maximum run time of 8,000 operating hours, whichever comes first. However, these terms require that the maintenance work specified in the maintenance schedule has been carried out properly by a specialist company. Commissioning is considered equivalent to acceptance. If formal acceptance has been agreed to, in deviation from this, then defect claims shall expire after 12 months, calculated from the time of acceptance.
- For overhauled parts, the warranty term is 12 months, calculated from delivery of the goods.
- Used goods are purchased without any guarantee.
- The warranty term for service and maintenance is also 12 months, calculated from the date our services are completed.
- If parts, assemblies, or entire devices are exchanged, this shall not extend the original warranty period for the delivered object. Replaced parts shall be considered our property. These terms only apply if and insofar as the law does not prescribe longer mandatory terms.
In cases of injury to life, health or body, or in case of intentional or grossly negligent breaches of duty by us, or if a defect is intentionally concealed or a guarantee is granted for a specific characteristic, then the statutory limitation periods shall apply.
13) None of the above clauses shall result in any change to the burden of proof established under the law or under a court judgment.
1) We will be liable for claims for damages and reimbursement of wasted expenditures (Sec. 284) resulting from breaches of contractual or non-contractual obligations, or from tortuous actions only
- in cases of intentional or grossly negligent action
- in cases of intentional or grossly negligent injury to life, body or health
- if we intentionally conceal a defect or if we provide a guarantee for characteristics
- in case of liability resulting from hazardous circumstances (in particular under the Product Liability Act)
2) If we violate significant contractual obligations (cardinal obligations), we will be liable for negligence of any kind, but only up to the foreseeable damages that are typical for the contract.
3) If our liability is excluded or restricted, this shall also apply to our executives, employees, representatives, and agents.
4) Cardinal obligations are significant contractual duties, e.g., obligations that give the contract its character and that the contractual partner should be able to trust will be fulfilled; these are the significant rights and obligations that create the conditions for the contract to be carried out, and that are essential for the purpose of the contract to be achieved.
5) Claims for lost profits (in particular for lost compensation for electricity fed into the grid), for expenses saved, those resulting from third party claims for damages and for other direct and subsequent damages cannot be requested, unless a characteristic guaranteed by the contractor is guaranteed specifically for the purpose of securing the client against such damages.
6) None of the above clauses shall result in any change to the burden of proof established under the law or under a court judgment.
X. Acceptance / claims for damages
1) If the purchaser withdraws in an unjustified manner from an order that has been issued, we can demand 15 % of the sales price for costs and lost profits resulting from carrying out the order, regardless of our option to assert higher damages, if actual damages are higher. The purchaser is entitled to prove that we suffered no damages, or lower damages.
2) The purchaser is obligated to accept the contractually agreed goods. If the customer does not fulfill this obligation, we are entitled, after a statutory time limit of 14 days, to withdraw from the agreement and assert claims for damages due to non-fulfillment.
XI. Place of fulfillment / jurisdiction
1) The place of fulfillment is Gorleben. The place of jurisdiction is the court responsible for commercial business transactions for our headquarters.
2) German material law shall apply to all legal relationships associated with this agreement, excluding the United Nations Convention on the International Sale of Goods (CISG).
XII. Partial invalidity
If a provision of these General Terms and Conditions, or a provision of other agreements is or becomes invalid, this shall not affect the validity of all remaining provisions.
1. Neither of the contractual parties shall be responsible if it is prevented from fulfilling the contract due to force majeure or other circumstances that are outside of the control of the contractual party.
2. “Force majeure” means the occurrence of a circumstance or event that prevents a party from fulfilling one or more of its contractual obligations under the agreement, if and insofar as this party proves: [a] that such interfering circumstance is outside of its reasonable control; and [b] that it was not reasonably foreseeable at the time the contract was concluded, and [c] that the affected party could not have reasonably avoided or overcome the effects of the interfering circumstance.
3. Until proven otherwise, the following events impacting one of the parties shall be assumed to fulfill the conditions (a) and (b) under paragraph 2 of this clause: (i) war (declared or undeclared), hostilities, invasion, actions by international enemies, extensive military mobilization; (ii) civil war, unrest, rebellion and revolution, military actions or coups, uprising, terrorist activities, sabotage or piracy; (iii) currency and trade restrictions, embargoes, sanctions; (iv) illegal or legal official actions, following laws or governmental orders, expropriation, seizure of factories, requisition, nationalization; (v) plagues, pandemics, epidemics, natural catastrophes or extreme natural events; (vi) explosions, fires, destruction of equipment, long-lasting breakdown of means of transportation, telecommunication, informational systems or energy; (vii) general labor unrest such as boycotts, strikes, and lockouts, slowdowns and seizures of factories and buildings. By way of express clarification, all restrictions on contractual services as a result of the current coronavirus pandemic, such as, and in particular, officially ordered measures or delivery problems, and/or if our preliminary suppliers experience delivery problems, shall be considered instances of force majeure in the sense of this clause.
4. A party that successfully invokes this clause is freed from its obligation to fulfill its contractual obligations and freed from any obligation to reimburse damages or any other contractual legal remedies in case of a breach of contract, specifically from the time at which the interference makes it impossible for the party to complete their services, as long as they inform the other party of this promptly. If the notification is not sent promptly, then the party is freed from obligations from the time the other party receives the notification. If the impact of the asserted interference or event is temporary, then the above consequences shall apply only for as long as the asserted interference prevents the affected party from carrying out its services. If the duration of the asserted interference causes the contractual parties not to receive a significant portion of what they should reasonably be expected to under the contract, then each party shall have the right to terminate the contract within a reasonable time period by notifying the other party. If not otherwise agreed, the parties hereby expressly agree that the contract can be terminated by either party if the interference lasts for longer than 120 days.