Small wind turbines for household garden industry agriculture
General Terms and Conditions of Deichturbinen, Thomas Bauer (as at: 22.10.2022)
§ 1 General
These terms and conditions apply to all current and future business relationships. Conflicting general terms and conditions of customers, suppliers or other business partners are not binding for us insofar as they contradict these terms and conditions. Amendments to these terms and conditions, in particular deviations or supplementary terms and conditions of the contractual partners are hereby rejected. Silence on our part with regard to orders or confirmations from customers, suppliers or other business partners that refer to deviating or supplementary terms and conditions shall not be regarded as consent. Such terms and conditions shall not apply to us even if the contract is executed. Rather, the contractual partner recognizes our general terms and conditions upon execution of the contract.
§ 2 Offers and prices
(1) Our offers are subject to change and non-binding. This shall also apply if we have provided the contractual partner with catalogs, technical documentation (e.g. drawings, plans, calculations, calculations, references to DIN standards), other product descriptions or documents – also in electronic form – to which we reserve ownership rights and copyrights. Not included in the respective offer and to be remunerated separately are all additional services provided by us that result from subsequent changes to the order, such as modified construction plans, sketches, molds, materials, etc.. In the absence of other agreements, such separate services shall be calculated on the basis of unit prices. Prices are quoted ex works plus statutory VAT, excluding packaging, loading costs, customs clearance and transport insurance. Orders and purchase orders placed by us shall only be valid after confirmation by us in text form. The order of the goods by the customer shall be deemed a binding contractual offer. Unless otherwise stated in the order, we are entitled to accept this contractual offer within five working days of its receipt by us. Acceptance can be declared either in writing (e.g. by order confirmation) or by delivery of the goods to the customer.
(2) Our order shall be deemed binding at the earliest upon written submission or confirmation. The supplier shall notify us of obvious errors (e.g. typing and calculation errors) and incompleteness of the order, including the order documents, for the purpose of correction or completion before acceptance; otherwise the contract shall be deemed not to have been concluded. The supplier is obliged to confirm our order in writing within a period of three working days or, in particular, to execute it without reservation by dispatching the goods (acceptance). Delayed acceptance shall be deemed a new offer and requires acceptance by us.
(3) The contractual partner agrees that we may obtain information on creditworthiness and credit standing from credit insurers and credit agencies. We reserve the right to withdraw from the contract after confirmation of the order and/or when delivery/service has already commenced if information is available on the basis of credit reports which gives rise to doubts regarding solvency.
(4) If the order amount exceeds a gross amount of € 1,000.00, the contractual partner shall be obliged, at our request, to make a down payment in the amount of 40 % of the order amount. 40% of the order amount at our request.
(5) We expressly reserve the right to make technical changes due to the revision of statutory provisions, the conversion of the production process, the detailed revision of the structures or due to requirements of the network operator within the scope of customary deviations and quality tolerances.
§ 3 Delivery periods
(1) Delivery dates and delivery periods may be agreed as binding or non-binding. A binding agreement must be made in text form upon conclusion of the contract. The delivery address must also be communicated in text form upon conclusion of the contract.
(2) 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 customer of this immediately and at the same time inform the customer 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 reimburse any consideration already paid by the customer. A case of non-availability of the service in this sense shall be deemed to be in particular the failure of our supplier to deliver to us in good time 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.
(3) If a contract or order provides for the provision of services in definable and verifiable partial services (e.g. manufacture, delivery, assembly), we shall be entitled to make partial deliveries. We are also entitled to have the order carried out by third-party companies.
(4) If the contractual partner is in default of acceptance or we are in default of delivery, if a contractual partner fails to cooperate or if the delivery is delayed for other reasons for which the contractual partner is responsible, we shall be entitled to demand compensation for the resulting damage including additional expenses (e.g. storage costs). A lump sum compensation in the amount of 0.5% per calendar week, beginning with the delivery deadline or – in the absence of a delivery deadline – with the notification that the goods are ready for dispatch, but not exceeding 5% of the agreed price. In the event of final non-acceptance, a lump-sum compensation of 10 % of the agreed price may be charged. of 10% of the agreed price may be charged. Proof of higher damages and statutory claims (in particular reimbursement of additional expenses, reasonable compensation, termination) shall remain unaffected; however, the lump sum shall be offset against further monetary claims. The contractual partner shall be entitled to prove that we have incurred no damage at all or only significantly less damage than the above lump sum.
§ 4 Dispatch/acceptance
(1) Shipment shall be at the expense and risk of the contractual partner as soon as the goods have left our warehouse/production facility, irrespective of who bears the freight costs. We shall choose the mode and route of shipment. If transportation is dependent on certain guidelines (e.g. temperature guidelines) and if these guidelines cannot be complied with for reasons beyond our control (e.g. weather conditions), we may withhold transportation until compliance with the guidelines is possible; we shall not be in default of delivery for this period.
(2) Deliveries without assembly free construction site or place of use shall be made without unloading by us. In these cases, the unloading time must be kept reasonably short for the scope of delivery.
(3 ) Formal acceptance of the delivery/service shall only take place if this is requested by one of the contracting parties within 3 working days of receipt of the delivery/service at the latest. If no acceptance is requested within 3 working days, the work that is ready for acceptance and ready for acceptance shall be deemed to have been accepted 12 days after receipt, unless the contractual partner expressly declares its refusal to accept. If the contractual partner is not an entrepreneur, we are obliged to inform the contractual partner of the declaration of acceptance of his silence. In the case of any kind of intended use, acceptance shall be deemed to have taken place 6 working days after the start of use.
(4) If a contract or order provides for the provision of services in definable and verifiable partial services (e.g. manufacture, delivery, assembly), we shall be entitled to request acceptance in text form with regard to such partial services after notification of their completion or to make such partial deliveries available for acceptance. In all other respects, the same shall apply in these cases with regard to the partial performance as with regard to the acceptance of the complete work in Clause 4.3. of these GTC.
§ 5 Terms of payment
(1) The invoice amount is due and payable within 5 working days of invoicing and delivery/service or acceptance of the goods. A down payment in accordance with § 2 (4) is due and payable within 10 days of invoicing. After expiry of the payment or down payment period, the contractual partner shall automatically be in default of payment.
(2) Cash discounts must be agreed in text form and are subject to the condition that there are no other claims against the contractual partner arising from due invoices. Only the pure value of the goods including VAT is eligible for discount.
(3) In the event of non-compliance with the terms of payment or if circumstances become known after conclusion of the contract which are likely to cast doubt on the creditworthiness of the contractual partner, all our claims shall be due immediately, irrespective of the term. In this case, we shall be entitled to make further deliveries only against advance payment.
(4) The customer shall only be entitled to rights of set-off or retention insofar as his claim has been legally established or is undisputed. In the event of defects in the delivery, the Buyer’s counter-rights shall remain unaffected, in particular pursuant to § 6 para. 4 sentence 3 of these GTC.
§ 6 Claims for defects
(1 ) The statutory provisions shall apply to the rights in the event of material defects and defects of title (including incorrect and short delivery as well as improper assembly or defective assembly instructions), unless otherwise specified below. Claims arising from supplier recourse are excluded if the defective goods have been further processed by the customer or another entrepreneur, e.g. by installation in another product.
(2 ) The basis for liability for defects is above all the agreement reached on the quality of the goods. Insofar as the quality has not been agreed, it shall be assessed in accordance with the statutory provisions whether a defect exists or not. We accept no liability for public statements made by the manufacturer or other third parties (e.g. advertising statements).
(3 ) The claims for defects presuppose that the statutory duties of inspection and notification of defects have been complied with. If a defect becomes apparent upon delivery, inspection or at any later point in time, this must be reported immediately in text form. In any case, obvious defects must be reported in text form within 5 working days of delivery and defects not recognizable during the inspection within the same period from discovery.
(4) If the item delivered by us is defective, we may initially choose whether to provide subsequent performance by remedying the defect (subsequent improvement) or by delivering a defect-free item (replacement delivery). We are entitled to make the subsequent performance owed dependent on the customer paying the price due. However, the customer shall be entitled to retain a reasonable part of the price in proportion to the defect. The customer must give us the time and opportunity required for the subsequent performance owed, in particular to hand over the rejected goods for inspection purposes. In the event of a replacement delivery, the customer must return the defective item to us in accordance with the statutory provisions. Subsequent performance shall not include the removal of the defective item or its reinstallation if we were not originally obliged to install it. We shall bear or reimburse the expenses necessary for the purpose of inspection and subsequent performance, in particular transport, travel, labor and material costs and, if applicable, removal and installation costs, in accordance with the statutory provisions if a defect actually exists. Otherwise, we may demand reimbursement from the customer of the costs incurred as a result of the unjustified request to remedy the defect (in particular inspection and transport costs), unless the lack of defectiveness was not recognizable to the customer. In urgent cases, e.g. if operational safety is at risk or to prevent disproportionate damage, the customer shall have the right to remedy the defect himself and to demand compensation from us for the expenses objectively necessary for this. We must be notified immediately, if possible in advance, of any such self-remedy. The right of self-remedy shall not apply if we would be entitled to refuse a corresponding subsequent performance in accordance with the statutory provisions. If the supplementary performance has failed or a reasonable deadline to be set by the customer for the supplementary performance has expired unsuccessfully or is dispensable according to the statutory provisions, the customer may reduce the price or, in the case of a significant defect, alternatively withdraw from the contract. Claims by the customer for damages or compensation for wasted expenditure shall only exist in accordance with § 7, even in the case of defects, and are otherwise excluded. Otherwise, we shall be entitled to reduce the price or withdraw from the contract in the event of a material defect or defect of title in accordance with the statutory provisions. We shall also be entitled to compensation for damages and expenses in accordance with the statutory provisions.
(5) If the item delivered to us is defective, the following shall apply: The supplier shall bear the expenses necessary for the purpose of inspection and subsequent performance even if it turns out that there was actually no defect. Our liability for damages in the event of an unjustified request to remedy defects shall remain unaffected; in this respect, however, we shall only be liable if we recognized or were grossly negligent in not recognizing that there was no defect. Notwithstanding our statutory rights and the above provisions of this paragraph, the following shall apply: If the supplier does not fulfill its obligation to provide subsequent performance – at our discretion by remedying the defect (rectification) or by delivering a defect-free item (replacement delivery) – within a reasonable period of time set by us, we may remedy the defect ourselves and demand reimbursement of the necessary expenses or a corresponding advance payment from the supplier. If subsequent performance by the supplier has failed or is unreasonable for us (e.g. due to particular urgency, endangerment of operational safety or imminent occurrence of disproportionate damage), no deadline need be set; we shall inform the supplier of such circumstances immediately, if possible in advance.
§ 7 Supplier recourse
(1 ) The statutory rights of recourse within a supply chain (supplier recourse pursuant to Sections 445a, 445b, 478 BGB) shall apply without restriction in addition to the claims for defects. The Buyer is entitled to demand exactly the type of subsequent performance (rectification or replacement delivery) from the Supplier that the Buyer owes its customer in the individual case. The Supplier’s statutory right to choose (§ 439 para. 1 BGB) is not restricted by this.
(2) Before the Purchaser acknowledges or fulfills a claim for defects asserted by its customer (including reimbursement of expenses pursuant to §§ 445a para. 1, 439 para. 2 and 3 BGB), the Purchaser shall notify the Supplier and request a written statement, briefly stating the facts of the case. If a substantiated statement is not made within a reasonable period of time and no amicable solution is reached, the claim for defects actually granted by the purchaser shall be deemed to be owed to his customer. In this case, the supplier shall be responsible for providing evidence to the contrary.
(3 ) The Purchaser’s claims arising from supplier recourse shall also apply if the defective goods have been further processed by the Purchaser or another entrepreneur, e.g. by installation in another product.
§ 8 Producer liability
(1) If the supplier is responsible for product damage, he shall indemnify us against third-party claims to the extent that the cause lies within his sphere of control and organization and he himself is liable in relation to third parties.
(2) Within the scope of its indemnification obligation, the supplier shall reimburse expenses pursuant to Sections 683, 670 BGB arising from or in connection with claims asserted by third parties, including recall actions carried out by us. We shall inform the supplier of the content and scope of recall measures – as far as possible and reasonable – and give him the opportunity to comment. Further legal claims remain unaffected.
(3) The supplier shall take out and maintain product liability insurance with a lump sum cover of at least EUR 5 million per personal injury/property damage, which shall also cover the removal and installation costs within the scope of the warranty.
§ 9 Other liability
(1 ) We shall be liable for damages – irrespective of the legal grounds – within the scope of fault-based liability in cases of intent and gross negligence. In the event of simple negligence, we shall only be liable, subject to a milder standard of liability in accordance with statutory provisions (e.g. for care in our own affairs), for
(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 essential for the proper execution of the contract and on whose compliance the contractual partner regularly relies and may rely); in this case, however, our liability is limited to compensation for the foreseeable, typically occurring damage.
(2) The limitations of liability resulting from paragraph 1 shall also apply to breaches of duty by or in favor of persons whose fault we are responsible for according to statutory provisions. They shall not apply if we have fraudulently concealed a defect or have assumed a guarantee for the quality of the goods and for claims of the customer under the Product Liability Act.
(3 ) The customer may only withdraw from or terminate the contract due to a breach of duty that does not consist of a defect if we are responsible for the breach of duty. A free right of termination of the customer (in particular according to §§ 651, 649 BGB) is excluded. Otherwise, the statutory requirements and legal consequences shall apply.
§ 10 Confidentiality and design protection
(1 ) We reserve ownership rights and copyrights to illustrations, plans, drawings, calculations, execution instructions, product descriptions and other documents. Such documents shall be used exclusively for the contractual performance and shall be returned to us after completion of the contract. The documents must be kept secret from third parties, even after termination of the contract. The confidentiality obligation shall only expire if and insofar as the knowledge contained in the documents provided has become generally known.
(2) The above provision shall apply accordingly to substances and materials (e.g. software, finished and semi-finished products) as well as to tools, templates, samples and other items that we provide to the supplier for production. Such items shall – as long as they are not processed – be stored separately at the supplier’s expense and insured to an appropriate extent against destruction and loss.
§ 11 Data protection
(1) The contractual partner is informed and expressly agrees that the data collected by us in connection with the contract and its execution will be stored and processed by us for the execution of the contract in accordance with the provisions of the Federal Data Protection Act (BDSG), the Telemedia Act (TMG) and the Telecommunications Act (TKG), insofar as this is necessary and useful for the execution of the contract.
(2) The contractual partner is informed and further agrees that the data collected and information received may be passed on by us within all companies belonging to our group of companies.
(3) In all other respects, the data obtained is subject to the strictest confidentiality and may not be passed on to third parties not belonging to our group of companies.
§ 12 Retention of title
(1 ) We reserve title to the delivered goods until full payment of all our current and future claims arising from the contract and an ongoing business relationship (secured claims).
(2 ) The goods subject to retention of title may neither be pledged to third parties nor assigned as security before full payment of the secured claims. The customer must inform us immediately in writing if an application is made to open insolvency proceedings or if third parties have access to the goods belonging to us (e.g. seizures).
(3) If the customer acts in breach of contract, in particular in the event of non-payment of the price due, we shall be entitled to withdraw from the contract in accordance with the statutory provisions and/or to demand the return of the goods on the basis of the retention of title. The demand for return does not at the same time include a declaration of withdrawal; rather, we are entitled to demand only the return of the goods and reserve the right to withdraw from the contract. If the customer does not pay the price due, we may only assert these rights if we have previously set the customer a reasonable deadline for payment without success or if setting such a deadline is dispensable according to the statutory provisions.
(4) Until revoked in accordance with (c) below, the customer is authorized to resell and/or process the goods subject to retention of title in the ordinary course of business. In this case, the following provisions shall apply in addition.
(a) The retention of title shall extend to the full value of the products resulting from the processing, mixing or combining of our goods, whereby we shall be deemed to be the manufacturer. If, in the event of processing, mixing or combining with goods of third parties, their right of ownership remains, we shall acquire co-ownership in proportion to the invoice values of the processed, mixed or combined goods. In all other respects, the same shall apply to the resulting product as to the goods delivered under retention of title.
(b) The customer hereby assigns to us as security any claims against third parties arising from the resale of the goods or the product in total or in the amount of our possible co-ownership share in accordance with the above paragraph. We accept the assignment. The obligations of the customer stated in paragraph 2 shall also apply with regard to the assigned claims.
(c) The customer shall remain authorized to collect the claim in addition to us. We undertake not to collect the claim as long as the customer meets his payment obligations to us, there is no deficiency in his ability to pay and we do not assert the retention of title by exercising a right in accordance with paragraph 3. If this is the case, however, we can demand that the customer informs us of the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment. In this case, we shall also be entitled to revoke the customer’s authorization to resell and process the goods subject to retention of title.
(d) If the realizable value of the securities exceeds our claims by more than 10%, we shall release securities of our choice at the customer’s request.
(5 ) Any processing, mixing or combining (further processing) of items provided by our supplier shall be carried out on our behalf. The same shall apply in the event of further processing of the delivered goods by us, so that we shall be deemed to be the manufacturer and shall acquire ownership of the product at the latest upon further processing in accordance with the statutory provisions.
(6 ) The transfer of ownership of the goods from our supplier to us must take place unconditionally and without regard to the payment of the price. However, if in individual cases we accept an offer of transfer of title from the supplier conditional on payment of the price, the supplier’s reservation of title shall expire at the latest upon payment of the price for the delivered goods. We shall remain authorized to resell the goods in the ordinary course of business even before payment of the price, assigning the resulting claim in advance (alternatively, the simple retention of title extended to the resale shall apply). This excludes all other forms of retention of title, in particular the extended retention of title, the forwarded retention of title and the retention of title extended to further processing.
§ 13 Notice pursuant to § 36 of the Consumer Dispute Resolution Act (VSBG)
We will not participate in a dispute settlement procedure before a consumer arbitration board within the meaning of the VSBG and are not obliged to do so.
§ 14 Applicable law, place of performance, place of jurisdiction
(1) German law shall apply exclusively, including the UN Convention on Contracts for the International Sale of Goods.
(2) The place of performance shall always be the location of our commercial branch.
(3 ) If the contractual partner does not have a general place of jurisdiction in Germany or is a registered trader, the following shall apply: The exclusive place of jurisdiction for all disputes arising from this contract shall be our registered office.
