Terms & Conditions of the Water & Wastewater Technic WWT GmbH
Water & Wastewater Technic WWT GmbH, Staufenstraße 5, 74385 Pleidelsheim, Germany, Phone 07144/8188-0, Fax 07144/8188-200
Terms and Conditions of Delivery Status as of 1 July 2004
I. Scope
The terms and conditions of business below apply to all contracts entered into between Water & Wastewater Technic WWT GmbH (“WWT”) and the orderer on the supply of goods and delivery of works and services. They apply for the whole duration of the business connection even if they have not been expressly agreed again. The terms and conditions below are considered as accepted at the latest on acceptance of the service or the goods. Any contrary terms and conditions of the orderer that WWT has not recognised in writing are not binding on WWT even if it has not expressly rejected them.
II. Quotation and formation of contract
1. WWT’s quotations are subject to change and without obligation unless WWT has expressly designated them as binding in written form.
2. Declarations of acceptance and all orders require written order confirmation by WWT to be legally valid. The contract only comes into being with the written order confirmation of WWT and in accordance with its content or by delivery or performance. WWT is entitled to call of the services of third parties for the fulfilment of the contract.
3. All agreements made between WWT and the orderer in connection with the purchase and works and services contract shall be laid down in writing in the purchase or works and services contract, these terms and conditions and the seller’s order confirmation.
4. Where the employees of WWT are not entitled to appropriate power of authority under the law, they are not authorised to make oral agreements or give oral assurances. Such agreements require written confirmation to be legally valid.
III. Copyright, reservation of right to modification
1. Details, weights, illustrations and drawings as well as other documents belonging to the unbinding quotations by WWT, shall remain in the ownership of WWT and are only an approximate guide and not assured characteristics unless they have been expressly designated as binding by WWT. WWT reserves the right to make design and form modifications to the subject of the contract during the delivery time if the subject of the contract and its appearance experience no unacceptable modifications for the contracting entity from this. All details regarding quantity, dimension, colour and weight are to be taken to include the tolerances usual in the trade.
2. WWT shall retain the right of ownership and copyrights of drawings, designs, calculations and other documents. These may be neither reproduced nor made accessible to third parties without written approval.
3. WWT is entitled to carry out modifications and improvements to products and services, this shall not create an obligation to carry out such modifications.
IV. Payment terms and conditions
1. WWT calculates the prices agreed on the formation of the contract based on the cost factors applicable on that date. If between the formation of the contract and agreed delivery date these cost factors (in particular material, wages, energy, freight, levies etc.) change, WWT shall be entitled to carry out a corresponding price change. If the orderer is not a merchant or if the contract is not part of the business of its trade, this shall only apply if there is more than 4 months between the formation of the contract and the agreed delivery date.
2. If the agreed delivery or production time exceeds the period of four months from the formation of the contract or if the delivery or production is delayed more than four months from the formation of the contract for reasons for which the orderer is solely responsible or which fall solely in his area of risk, WWT shall be entitled to charge the price applicable on the date of delivery or production. If the price increase is more than 5 % of the purchase price or labour wage estimated, the orderer shall be entitled to withdraw from the contract. This right of withdrawal no longer applies if the orderer does not exercise it within a period of two weeks, starting with the date of the notification of the new price.
3. Orders for which fixed prices have not been expressly agreed will be charged at the list price (daily price) applicable on the date of delivery, plus packaging and dispatch costs, such as in particular transport insurance, loading and shipping costs, customs duty costs and TÜV fees plus VAT at the respective statutory level.
4. Unless agreed otherwise with the orderer, the purchase price or labour wage (without deduction) shall be due immediately for payment on receipt of the invoice by the orderer.
5. The orderer shall also fall into arrears without warning from WWT if it does not pay the purchase price within 30 of the due date and receipt of the invoice or an equivalent payment schedule. If the purchaser falls into arrears with a payment, WWT shall be entitled to charge interest on arrears in the amount of 8 % above the relevant base rate of the European Central Bank (ECB) from the relevant date.
WWT reserves the right to provide evidence of higher loss.
6. Even if notifications of defects or counter claims have been asserted, the orderer is only entitled to offsetting if the counterclaims have been legally established, recognised by WWT or are undisputed. The orderer may only exercise its right of retention if its counterclaim relates to the same purchase or works and services contract.
V. Late payment, deterioration of assets, payment deferral
1. If the contracting entity falls into arrears of payment or we receive unsatisfactory information about its ability to pay or asset situation we can cease further work regarding current orders up to the complete payment in advance or corresponding security deposit. If this payment in advance or security deposit is not provided within an appropriate period, we shall be entitled to terminate the contract and invoice the contracting entity for costs arisen to date, including lost profit.
2. If partial payment is agreed the whole residual amount shall be due for immediate payment as soon as the contracting entity is wholly or partially in arrears with two instalments.
3. In the event of late payment or deferral we shall, subject to the assertion of a greater actual loss for delay, be entitled to charge interest in the amount of five percentage points above the base rate if the contracting entity is a natural person making a legal transaction for his own purpose which can be attributed neither to his commercial or self-employed activity (consumer), otherwise eight percentage points above the base rate.
VI. Delivery and performance time
1. Delivery dates, production dates or periods that have not been expressly agreed as binding are exclusively non-binding information. Subsequent requests by the contracting entity for changes or additions extend the delivery time appropriately.
2. If the WWT through fault cannot comply with an expressly agreed period or falls into arrears for other reasons, the orderer must grant it an appropriate grace period - starting from the date of the receipt of the written notice of default by WWT or in the case of the period determined according to the calendar. After the unsuccessful expiry of this grace period the orderer shall be entitled to withdraw from the contract.
3. WWT shall be liable under the statutory provisions subject to the limitations below if the contract involves a performance at on a fixed date or, as a consequence of the delay in delivery for which WWT is responsible, the orderer is entitled to invoke the discontinuance of its interest in the fulfilment of the contract.
4. WWT shall be liable towards the orderer in the event of delay in delivery under the statutory provisions if the delay in delivery is caused by an intentional or grossly negligent breach of duty for which WWT is responsible. A fault by its representatives or vicarious agents is to be attributed to WWT. If the delay in delivery is not based on an intentional or grossly negligent breach of contract by the user, WWT’s liability shall be limited to the foreseeable damage arising in this type of contract.
5. If the delay in delivery of goods or services for which WWT is responsible is based on the culpable breach of an essential contractual obligation, WWT shall be liable under the statutory provisions, whereby its liability is limited to the foreseeable damage arising in this type of contract.
6. The further legal claims and rights of the orderer because of a delay in delivery of goods or services by WWT remain unaffected.
7. WWT shall be entitled to perform partial deliveries and partial services if this is reasonable for the orderer.
8. The delivery period starts with receipt of the order confirmation.
VII. Transfer of risk – Dispatch/packaging
1. Loading and dispatch are carried out uninsured and at the risk of the orderer. WWT will strive to take into consideration the wishes and interests of the orderer regarding dispatch type and dispatch route; any additional costs arising from this - even for agreed carried paid delivery - shall be borne by the orderer.
2. If the dispatch or the production is delayed at the request or at the fault of the orderer, WWT shall store the goods at the expense and risk of the orderer. In this case notification of readiness for dispatch is equivalent to dispatch.
VIII. Defect claims
We provide a warranty for defects of material and title excluding further claims - subject to the provisions in section IX of these terms and conditions - as follows:
Material defects:
1. All parts that as a consequence of a circumstance pertaining before the transfer of risk turn out to be defective shall be rectified or resupplied at our choice free of charge. The identification of all defects (including defective deliveries) is to be reported to us immediately in writing. Replaced parts become our property.
2. The contracting entity must, after consultation with us, give us the required time and opportunity to carry out all repairs and replacement deliveries that appear to us to be necessary; otherwise we shall be released from the liability for consequences arising herefrom. Only in urgent cases of danger to the operational safety or to prevent excessive damage, whereby in these cases we are to be informed immediately, does the contracting entity have the right to remedy the defect itself or through third parties and to demand reimbursement for any necessary expenses from us.
3. We shall bear the costs arising from the rectification of defects or replacement delivery
- where the complaint turns out to be justified – the costs of the replacement item including dispatch. Apart from that we shall bear the costs of assembling and dismantling as well as the costs for the scope of the necessary fitters and auxiliary staff that may be required including travel costs where no disproportionate workload arises for us herefrom.
4. Within the scope of the statutory regulations, the contracting entity has a right of withdrawal from the contract if we – taking into consideration the legal exceptions – have allowed an appropriate period for rectification of defects or replacement delivery set by the contracting entity because of a material defect to elapse without success. If only a minor defect is present, the contracting entity is solely entitled to reduction of the contract price. In all other cases, the right to reduction of the contract prices remains excluded.
Further claims shall be determined under section IX of these terms and conditions.
5. For the following cases any warranty on our part is excluded: for damage to the delivery item caused by unsuitable or incorrect use; defective assembly or commissioning by the contracting entity and third parties; natural wear and tear; defective or negligent handling by the contracting entity; incorrect maintenance; use of unsuitable operating resources or ones not notified to us by the contracting entity before delivery; defective construction works; unsuitable foundation ground, chemical or electrical influences – where they are not our responsibility.
6. Should the contracting entity or a third party involved by it carry out incorrect repairs, there shall be no liability on our part for the consequences herefrom. The same applies to such modifications of the delivery item that the contracting entity may have carried out on the delivery item without our prior written consent.
Defects of title:
7. If the use of the delivery item leads to the infringement of industrial property rights or intellectual property rights in Germany, we shall in principle procure the right to further use for the contracting entity at its expense or modify the delivery item in such a way acceptable for the contracting entity that the property right infringement no longer exists. If this is not possible at economically appropriate conditions or an appropriate period, the contracting entity shall be entitled to withdraw from the contract. Under the conditions stated above we shall also be entitled to withdraw from the contract. Over and above that we shall indemnify the contracting entity from undisputed or legally established claims by the rightholder affected.
8. Our obligations named in section IX of these terms and conditions are definitive, subject to the provisions in clause IX.2 for the event of property right and copyright infringement. Our obligations stated in clause VIII.7 of these terms and conditions are only valid if
a) the contracting entity has informed us without delay of the industrial property or copyright infringement; and
b) the contracting entity has supported us in an appropriate scope in the defence against claims asserted or in the execution of the modification measures; and
c) all defence measures including out-of-court settlements remain reserved to us; and
d) the defect of title is not based on an instruction by the contracting entity; and
e) the legal infringement was not caused by the fact that the contracting entity modified the delivery item on its own authority or has used it in a way not foreseen by the contract.
IX. Liability
1. If, through our fault as a consequence of the lack of or defective execution of proposals and consultations carried out before or after the formation of the contract or by the breach of other ancillary contractual provisions – in particular instructions for operation and maintenance of the item – the delivery item cannot be used by the contracting entity according to the contract, the terms of clauses VIII and IX.2 of these terms and conditions apply accordingly excluding further claims by the contracting entity.
2. For damage not caused to the delivery item itself, we shall be liable – on whatever legal grounds – only
a) in the case of intent
b) in the case of gross negligence of the owner/bodies or senior management
c) in the case of culpable injury to life, limb or health
d) in the case of defects that we have fraudulently concealed or the absence of which we have guaranteed
e) in the case of defects of the delivery item where liability exists under the Product Liability Act for injury to persons or damage to property for privately used items. In the case of culpable violation of essential contractual obligations, we are also liable for gross negligence of subordinates and for simple negligence, in the latter case is limited to foreseeable damage typical of the contract in a reasonable manner. Any further claims are excluded.
X. Limitation period
All claims by the contracting entity existing against us – on any legal grounds whatsoever – shall be time barred in 12 months. The limitation period starts from the transfer of risk under sections VI and VII of these terms and conditions.
This limitation period of 12 months does not apply in the following cases:
a) For delivery of a newly produced structure or an item that has been used in accordance with its usual manner of use for a structure and has caused its defectiveness, the legal limitation periods apply to claims against the user because of a defect.
a) For work performances on a structure or an item that has been used in accordance with its usual manner of use for a structure and has caused its defectiveness, the legal limitation periods apply to claims against the user because of a defect.
c) In the case of claims because of a defect in the purchase item for repair, withdrawal, purchase price reduction or replacement of lost expenses, a limitation period of two years applies, if the purchase involves a new movable item or if it involves the delivery of a movable items to be newly manufactured or produced and if the contracting entity is a natural person entering into a legal transaction for a purpose that is attributable neither to his commercial nor self-employed professional activity (consumer).
d) In the case of liability of the user because of intent the statutory limitation period applies.
XI. Retention of title
1. The goods remain our property until complete payment of all our claims from the business relationship, in particular also until all bills of exchange given for payment have been cashed. This also applies in the event of processing of our goods, which is always carried out for us as producer (section 950 German Civil Code). In the event of processing, combination of commingling with other goods we are entitled to co-ownership in proportion of the invoice value of our goods to these other goods on the date of processing, combination or commingling.
2. The orderer may only dispose of our reserved goods in the normal course of business and only as long as it is not in default of payment. It is not entitled to other disposals of the reserved goods (e.g. assignment of chattels, pledging). Purchase price or labour wage claims by the orderer from selling on our reserved goods shall be assigned to us as of now in the amount of our invoice value up to the settlement of all our claims including bills of exchange. The orderer is revocably entitled to collect these receivables.
3. In the event of default in payment, imminent suspension of payments, unsatisfactory information about the ability to pay or asset position of the orderer or if debt enforcement or bill of exchange protest are taken out against it, we shall be authorised to take possession of and sell the reserved goods. The orderer is required to hand them over. All costs of repossessing and disposing of the goods shall be borne by the orderer.
4. The purchaser must inform us without delay in writing of all accesses by third parties, in particular of enforcement measures as well as other impairments of its ownership. The purchaser must reimburse all damage and costs that arise through a violation of this obligation and through necessary intervention measures against access of third parties.
XII. Data privacy
1. WWT complies with the statutory provisions on data privacy. The orderer consents that the details from the contract may be stored and further processed as well as passed on internally where this is necessary for the execution of the contract as well as for operational and statistical evaluation.
2. The orderer consents that WWT may obtain a creditworthiness check from corresponding commercial credit agencies and may transfer this data to non-contractual processing. Protectable interest of the orderer shall not be impaired or damaged by this.
XIII. Place of performance, jurisdiction
1. Place of performance is the place of the main business headquarters of WWT, currently Pleidelsheim.
2. If the orderer is a merchant, a legal entity governed by public law or special fund under public law or has no general jurisdiction in Germany, the jurisdiction is the place of the main business headquarters of WWT, currently Pleidelsheim. The right to file a claim against the orderer at the place of its general jurisdiction remains unaffected.
XIV. Final provision, applicable law
1. The relationships between the parties are governed exclusively by the law applicable in the Federal Republic of Germany. The application of the uniform law concerning the international purchase of movable property as well as the law on the conclusion of international purchase contracts concerning movable property is excluded.
2. The orderer is not entitled to assign claims from the purchase or works and services contract without the consent of WWT.
3. Should one provision of these general terms and conditions be or become ineffective or unenforceable this does not affect the effectiveness of the remainder of the general terms and conditions of delivery or payment.
Assembly and service conditions as of 1 January 2004
I. Scope of the conditions
Assembly, maintenance and all other services by Water & Wastewater Technic WWT GmbH are carried out in accordance with these terms and conditions of business. The General Terms and Conditions of Delivery of Water & Wastewater Technic WWT GmbH apply in addition. Conflicting or differing terms and conditions of business of the contracting entity are herewith rejected. Nor shall different terms and conditions of business apply if we do not receive them until after transmission of our terms and conditions and have not rejected them once again separately. Modifications, subsidiary agreements and other differing arrangements cannot be agreed orally by employees of Water & Wastewater Technic WWT GmbH, unless they are entitled to corresponding power by law. Such types of oral arrangements require written confirmation by Water & Wastewater Technic WWT GmbH to be valid.
II. Wage costs, working hours
1. Wage costs, working hours within normal working time on a working day within the scope of the standard agreed working week will be charged net in accordance with the current charge rates of Water &Wastewater Technic WWT GmbH.
2. Assembly surcharges: for working under difficult conditions - in particular in hot or cold or particularly restricted spaces, on particularly contaminated assembly areas or on piping applied with chemicals the current charge rates of Water & Wastewater Technic WWT GmbH apply. This also applies to hazardous or unpleasant work supplements for cleaning work.
3. Overtime surcharges: overtime as well as hours worked on Sundays and public holidays will be charged at the current surcharges of Water & Wastewater Technic WWT GmbH at the charge rates stated under clauses II 1, 2.
4. Working time: preparation, journey, waiting and travel time are considered as working hours and will be invoiced accordingly.
5. Delays: if the service is delayed without any fault by Water & Wastewater Technic WWT GmbH, expenses arising in addition - in particular travel and waiting times - will be charged separately, this also applies for service prices agreed on a flat-rate basis.
6. Certificates of hours worked: the contracting entity must give the employees of Water & Wastewater Technic WWT GmbH written confirmation of the hours worked on the service report. In all cases the invoices of Water & Wastewater Technic WWT GmbH will be based on the service reports filled in by the employees of Water & Wastewater Technic WWT GmbH and are decisive for both parties.
III. Travel costs
The travel costs for employees of Water & Wastewater Technic WWT GmbH shall be invoiced for the outward and return journey from the respective place of residence of the employee or his last place of work to the place of performance as well as for the daily journeys from his accommodation to the place of work. If motorised vehicles are used, the current charge rate of Water & Wastewater Technic WWT GmbH will be charged per kilometre travelled. For rail travel, 1st class rail costs will be invoiced for engineers and chemists and for the remaining employees 2nd class rail costs - plus supplements. For necessary air travel, the costs incurred will be charged. The travel costs also include the costs of the transport and transport insurance both of personal luggage and accompanying work equipment. Water & Wastewater Technic WWT GmbH reserves the right to choose the travel and transport mode in all cases.
IV. Overnight accommodation and other costs
1. Overnight accommodation costs will be charged to the contracting entity. Overnight costs will be charged on a flat-rate basis based on the current charge rate of Water & Wastewater Technic WWT GmbH. The employees of Water & Wastewater Technic WWT GmbH reserve the exclusive right to choose appropriate accommodation.
2. Business expenses additionally incurred by employees of Water & Wastewater Technic WWT GmbH for telephone, postage and similar will be invoiced separately.
V. Services by the contracting entity
1. At the delivery and assembly site the contracting entity must create in good time all conditions necessary for performance of service by Water & Wastewater Technic WWT GmbH without delay, under appropriate working conditions. In particular, the construction conditions are to be created so that delivery at the installation point can be carried out without delay after delivery without additional construction measures (e.g. creation of transport openings) and without the creation of construction and technical conditions at the installation point that are not owed by us. In particular, the contracting entity must provide at its expense the required auxiliary staff, heavy tools and equipment (scaffolding), operating resources, sanitary facilities as well as containers for disposal of assembly and packaging materials. If the above conditions are not created by the contracting entity, we shall be entitled to make a claim against it for resulting expenses and damage (e.g. overtime, unnecessary travel time, additional transport costs etc.)
2. The measures for the protection of employees and property of Water & Wastewater Technic WWT GmbH are to be carried out by the contracting entity, Water & Wastewater Technic WWT GmbH is to be informed of existing safety regulations. The contracting entity is required to comply with all statutory occupational health and safety regulations including towards Water & Wastewater Technic WWT GmbH and its employees. In the event of breach of such regulations by the contracting entity and damage arising hereby to Water & Wastewater Technic WWT GmbH or its employees, we shall be entitled to claim damages from the contracting entity even in the event of simple negligence. For work outside the business working hours an employee of the contracting entity must be present.
3. The contracting entity must likewise ensure suitable break and work rooms - at an appropriate temperature - for the employees of Water & Wastewater Technic WWT GmbH as well as lockable rooms for keeping the accompanying tools and the other work equipment. On breach of these duties of the contracting entity Water & Wastewater Technic WWT GmbH shall be entitled to suspend work and claim damages arising herefrom.
VI. Costs of materials
1. The material necessary for the respective work - where not already listed individually in the order confirmation - will be invoiced in accordance with the material slips drawn up by the employees of Water & Wastewater Technic WWT GmbH. These are definitive for both sides and in addition to be signed by the contracting entity.
2. The calculation of the material costs and the costs for the use of special work equipment of Water & Wastewater Technic WWT GmbH will be carried out in accordance with the current charge rates of Water & Wastewater Technic WWT GmbH.
VII. Acceptance
1. The contracting entity is required to accept the work as soon as it has been notified of their completion. Acceptance is carried out by a written report. With successful acceptance the proper execution of the services provided is confirmed. With acceptance risk is transferred to the contracting entity. Commissioning if not solely for a trial period by the contracting entity shall be considered as acceptance.
2. The works are considered as accepted within two weeks of notification of completion by Water & Wastewater Technic WWT GmbH unless the contracting entity complains of defects within this period. Water & Wastewater Technic WWT GmbH will inform the contracting entity again of this requirement with notification of completion.
3. The contracting entity is only entitled to refuse acceptance if the defects that are the subject of complaint by it prevent or significantly reduce the use assumed in the contract, otherwise it is required to accept the works with the reservation of rectification of defects.
VIII. Liability for Defects
1. In addition to the provisions on liability for material defects as well as the general liability provisions in the general terms and conditions of delivery of Water & Wastewater Technic WWT GmbH, the provisions of this section apply in the case of assemblies, repairs and other services. The provisions from our general terms and conditions of delivery also apply to our warranty and liability in the event that we do not perform our services ourselves or our own employees but have them performed by sub-contractors.
2. In the case of assemblies, repairs and other services, the contracting entity is entitled to price reduction under the statutory regulations if - taking into consideration the legal exceptions - a period set for Water & Wastewater Technic WWT GmbH for fulfilment/defect rectification has elapsed without success. In these cases the contracting entity shall only be entitled to withdrawal if the defect rectification or price reduction is demonstrably not in the interests of the contracting entity.
3. Replaced parts become our property.
VIIII. Invoicing and Payment
Settlement is carried out in principle after the completion of the works; however Water & Wastewater Technic WWT GmbH reserves the right to issue interim invoices and require instalments. Calculation is carried out based on the current charge rate of Water & Wastewater Technic WWT GmbH. Invoice amounts are due for payment on issue of the invoice immediately and without deduction.