FW Fernwärme

General Terms and Conditions of Delivery and Service

FW-FERNWÄRME-TECHNIK GmbH

Section 1 General information and scope of application

These General Terms and Conditions of Delivery and Service (GTC) apply to all of our business relationships with our customers (hereinafter referred to as “Customer”). The GTC shall only apply if the Customer is a business person (Section 14 of the German Civil Code – Bürgerliches Gesetzbuch; BGB), legal entity under public law or a special trust under public law.
The GTC shall apply, in particular, to agreements on the sale and/or delivery of movable items (hereinafter also referred to as “goods”), regardless of the goods being manufactured by us or purchased from suppliers (Sections 433 and 651 BGB).
The special provisions of the GTC additionally apply to contracts for work and services. In the event of construction services, the German Construction Contract Procedures (Verdingungsordnung für Bauleistungen – VOB) Part B apply in their respective applicable version. In the event of these GTC deviating from the VOB/B, the provisions of the VOB/B shall take precedence. The VOB can be purchased from book stores. It can also be perused at our premises or we can send it out upon request.
The GTC in their respective applicable version shall also apply as general agreement to future agreements without us having to refer to them on a case-by-case basis.
Our GTC shall apply exclusively. Deviating, contrary or supplementary general terms and conditions of the Customer shall only form part of the agreement if we have explicitly approved their applicability. This obligation to obtain approval shall apply at all times, including, for example, if we deliver goods to the Customer without reservations in knowledge of the GTC of the Customer.
Any individual agreements concluded with the customer on a case-by-case basis (including additional agreements, addendums and amendments) shall always take precedence over these GTC. A written agreement and/or our written confirmation shall be authoritative for the content of such agreements.
Declarations that are relevant in law and notices that are to be given by the Customer to us after the agreement has been concluded (e.g. deadlines, notices of defect, withdrawal notice or reduction) shall be placed in writing to become effective.
References to the applicability of legal provisions are only included for the purpose of clarification. Even without such clarification, the legal provisions therefore apply, unless directly amended or explicitly excluded in these GTC.

Section 2 Conclusion of the Agreement

Our offers are non-binding. This shall also apply if we have provided the Customer with catalogues, technical documentation (e.g. drawings, plans, computations, calculations, references to DIN standards), other product descriptions or documents (including those in an electronic format) in which we reserve property rights and copyright.
We collect or use probability values as part of credit checks whose calculation contains data such as address for the purpose of making a decision about the justification, performance or termination of the contractual relationship.

Section 3 Delivery deadline and delay

The delivery deadline shall be agreed on an individual basis and/or specified by us upon acceptance of the order.
In the event of us being unable to meet binding delivery deadlines for reasons that fall outside of our scope of control (unavailability of the service), we shall notify the Customer immediately of such fact and at the same time announce the expected new delivery deadline. Should the service remain unavailable during the new delivery deadline, we may withdraw from the Agreement, in whole or part thereof, and reimburse the Customer for any consideration already paid without delay. Unavailability within this sense shall be, in particular, delayed deliveries to us from our suppliers if we have concluded hedges to cover such eventuality. This shall not affect our legal right to withdraw from or terminate the Agreement and the legal provisions on the processing of the Agreement upon expiry of the obligation to provide services (e.g. impossibility or unreasonableness of the service and/or subsequent fulfilment). The Customer’s rights to withdraw from and terminate the Agreement shall also remain unaffected in accordance with Section 8 of these GTC.
The occurrence of our delivery delay shall be based on the legal provisions. In any case, however, the Customer shall be required to give written warning.

Section 4 Delivery, risk transfer, acceptance and acceptance delay

All goods are delivered ex works (in accordance with Incoterms 2010). The factory shall also be the place of fulfilment. At the Customer’s request and cost, the goods can also be dispatched to another destination (sale by dispatch). Unless otherwise agreed, we may determine the type of dispatch (particularly transport companies, transport path and packaging).
The risk of accidental destruction and deterioration of the goods shall be transferred to the Customer at the latest upon handover. In the case of sale by dispatch, however, the risk of accidental destruction and deterioration of the goods as well as the risk of delays shall be transferred already at the time the goods are delivered to the freight forwarder, freight carrier or other person or organisation engaged to transport the goods.

Section 5 prices and payment conditions

Unless otherwise agreed on an individual basis, our current prices at the time of the conclusion of the Agreement shall apply, ex works plus statutory VAT.
In the case of sale by dispatch (Section 4 Paragraph 1), the Customer shall carry the transport costs as from the warehouse and costs of any transport insurance requested by the Customer. The Customer shall pay any customs duties, fees, taxes and other public levies. We shall not accept returns of any transport and all other packaging in accordance with the packaging regulations (Verpackungsverordnung). They shall become the property of the Customer with the exception of pallets. The Customer shall retain all loading timber, transport restraints and transport caps and return them to us.
Unless otherwise specified in individual agreements, the purchase price shall be due for payment within 21 days from date of invoice and delivery and/or acceptance of the goods.
The Customer shall be deemed to have defaulted on payment if failing to pay by the end of the above payment deadline. The purchase price shall carry statutory default interest at the respective applicable rate for the period of delay. We reserve the right to assert any further damages caused by default. Our claim for interest counting from the due date (Section 353 HGB) against business persons shall not be affected by the above.
The Customer may only offset or retain receivables if their claim is legally binding or undisputed. Section 7 paragraph 6 shall not be affected by defects in the delivered goods.
Should it become apparent after conclusion of the Agreement that our claim for the purchase price is endangered by the Customer’s inability to make payment (e.g. application to commence insolvency proceedings), we may withdraw from the Agreement in accordance with the legal provisions on the refusal to provide services and after granting a period of grace, if necessary (Section 321 BGB). In the event of agreements on the production of untenable items (single-item production), we may declare our withdrawal immediately. This shall not affect the legal provisions on the expendability of setting a deadline.

Section 6 Retention of title

We reserve the right to retain the title to the goods sold until we receive full payment of all our current and future receivables arising from the purchase agreement and any current business relationship (secured receivables).
The goods subject to retention of title shall not be pledged to third parties or used as securities until paid for in full. The Customer shall notify us immediately of any third-party access to the goods belonging to us.
In the event of the Customer violating the provisions of the Agreement, particularly in the event of non-payment of the purchase price due, we may withdraw from the Agreement and/or request the return of the goods on the grounds of retention of title in accordance with the legal provisions. The request to return goods shall not include the simultaneous declaration of withdrawal. We may merely request to return the goods and reserve the right to withdraw. Should the Customer fail to pay the purchase price due, we may only assert these rights after granting the Customer a reasonable period of grace and the Customer failing to make payment within it or if such period of grace does not have to be granted by law.
The Customer may sell on and/or process the goods subject to retention of title during proper business operations. In this case, these additional provisions shall apply:

(a) The retention of title shall apply to the full value of products created through processing, mixing or combining our goods with us being classed as the manufacturer. Should the retention of title to third-party goods remain during the processing, mixing or combining of the goods with such third-party goods, we shall acquire co-ownership in proportion to the mathematical value of the processed, mixed or combined goods. Other than that, the same rules as for the goods subject to retention of tile that have been delivered shall apply to the product created.

(b) The Customer shall herewith assign to us the receivables against third parties arising from selling on the goods or products, in total or the amount of our co-ownership share in accordance with the paragraph above, by way of security. We herewith accept such assignment. The Customer’s obligations stated in paragraph 2 shall also apply with regard to the assigned receivables.

(c) In addition to us, the Customer shall also remain entitled to collect the receivables. We shall undertake not to collect the receivables as long as the Customer meets its payment obligations to us, does not default on payment, no application to commence insolvency proceedings has been submitted and the Customer’s ability to pay is not impaired in any other way. However, should the above be the case, we may request for the Customer to disclose to us the assigned receivables and their debtors, provide all information required to collect such receivables, hand over the related documentation and notify the debtors (third-parties) of such assignment.

(d) If the realisable value of the securities exceeds our receivables by more than 10%, we shall release securities of our choosing upon the Customer’s request.

Section 7 Customer’s claims for defects

Unless otherwise agreed, the Customer’s rights regarding material and legal defects of construction services shall be subject to the German Construction Contract Procedures (Verdingungsordnung für Bauleistungen – VOB) Part B in their respective applicable version.
Unless otherwise specified below, the Customer’s rights regarding material and legal defects shall be governed by the legal provisions. The special legal provisions regarding the final delivery of the goods to a consumer (supplier’s recourse in accordance with Sections 478 and 479 BGB) shall not be affected in any case.
Our liability for defects shall primarily be based on the agreements made on the properties and condition of the goods. All product descriptions that are part of the individual agreement and the recognised state of technology at the time of delivery shall be classed as agreement on the properties and condition of the goods. It shall be irrelevant if the product description originates from the Customer, manufacturer or us.
If the properties and condition have not been agreed, the legal provisions shall be used as a basis to assess if the goods are, in fact, defective (Section 434 Paragraph 1 Sentences 2 and 3 BGB). However, we shall not assume any liability for public remarks made by the manufacturer or other third parties (e.g. advertising statements).
The Customer shall only have the right to assert claims for defects if it has met its legal obligations to perform inspections and give notice of complaint (Sections 377 and 381 of the German Commercial Code – Handelsgesetzbuch; HGB). Notice of any defects found during such inspection or at a later date shall be given to us immediately and in writing. Notice shall be deemed to have been given immediately if it has been submitted within two weeks, with the deadline being deemed to have been complied with if the notice has been sent on time. Notwithstanding these obligations to perform inspections and give notice of complaint, the Customer shall give written notice of obvious defects (including incorrect and short deliveries) within two weeks from delivery. In this case, the timely dispatch of the notice shall also be sufficient to meet the deadline. If the Customer fails to perform the proper inspection and/or give notice of defect, our liability for unreported defects shall be excluded.
If the goods delivered are defective, we may initially choose whether to subsequently fulfil the Agreement by rectifying the defect (subsequent fulfilment) or deliver a non-defective replacement (replacement delivery). This shall not affect our right to reject the selected type of subsequent fulfilment under the legal conditions.
We may make the subsequent fulfilment owed by us dependent on the Customer paying the purchase price due. However, the Customer may retain a portion of the purchase price that is reasonable in relation to the defect.
The Customer shall grant us the time and opportunity required for the subsequent fulfilment, and particularly provide us with the rejected goods for testing purposes. If we deliver replacement goods, the Customer shall return to us the defective goods in accordance with the legal provisions.
We shall carry the costs incurred for the purpose of testing and subsequent fulfilment, particularly transport, travel, labour and material costs, if an actual defect has been found. However, should a request made by the Customer to rectify a defect prove to be unjustified, we may request for the Customer to reimburse us for the costs incurred as a result.
In urgent cases, e.g. if health and safety at work is compromised or unreasonable damage has to be averted, the Customer may rectify the defect itself and request for us to reimburse any objectively necessary costs incurred in this respect. The Customer shall notify us immediately, and ideally in advance, of such endeavours to rectify the defect itself. The Customer shall not be entitled to rectify the defect itself if we would be entitled to reject corresponding subsequent fulfilment in accordance with legal provisions.
If subsequent fulfilment has been unsuccessful or a period of grace granted by the Customer expires without us subsequently rectifying the defect, or such period of grace does not have to be granted by law, the Customer may withdraw from the purchase agreement or reduce the purchase price. However, immaterial defects shall not give the right to withdraw.
We shall initially assume liability for defective products by choosing to subsequently rectify the defect or manufacture a new product. If we reject fulfilment for good and final cause and also reject rectification and subsequent fulfilment due to unreasonable costs, subsequent fulfilment fails or is unrea-sonable for the Customer, the Customer may choose to request only the reduction of the remuneration (decrease) or rescission of the Agreement (withdrawal) and request compensation within the scope of limited liability (see Section 8) instead of the service. However, the Customer may not withdraw from the Agreement on the grounds of an immaterial contractual violation, particularly immaterial defects only. The Customer may not withdraw from the Agreement if the violation of an obligation in the form of a defect falls outside of our scope of responsibility.
Claims made by the Customer for damages and/or reimbursement of unnecessary costs shall only be valid in accordance with Section 8 and excluded in all other circumstances.

Section 8 Other liability

Unless otherwise agreed in these GTC, including the provisions below, we shall assume liability for violations of contractual and non-contractual obligations in accordance with the relevant legal provisions.
We shall assume liability for damages, for whatever legal reason, in the event of malicious intent and gross negligence. In the case of simple negligence, we shall only assume liability

a) for injury to life, limb and health

b) for damages arising from the violation of a material contractual obligation (obligation whose fulfilment is crucial for the proper performance of the Agreement and in whose fulfilment the Contracting Partner trusts, and may regularly trust). In this case, however, our liability shall be limited to the replacement of the discernible damage which can usually be expected to occur.
The limitation of liability arising from paragraph (2) shall not apply in the event of us fraudulently concealing a defect or having assumed a guarantee for the properties and condition of the goods. The same shall apply to the Customer’s claims in accordance with product liability law.
The Customer may only withdraw or terminate the Agreement on the grounds of a violation of obligation that falls within our scope of responsibility. The Customer’s unrestricted right to terminate the Agreement (particularly in accordance with Sections 651 and 649 BGB) shall be excluded. The legal provisions and legal consequences shall apply in all other respects.

Section 9 Statues of Limitation

Unless otherwise agreed, the four-year warranty period specified in VOB/B shall apply to buildings as well as work and delivery contracts.
In deviation to Section 438 Paragraph 1 No. 3 BGB, the general statutes of limitation for claims arising from material and legal defects shall be one year from delivery. The statutes of limitation shall start upon acceptance if such acceptance has been agreed.
However, if the goods are buildings or items that have been used for a building in accordance with their usual manner of use and caused the building to be defective, the statutes of limitation are five years from delivery in accordance with legal provisions (Section 438 Paragraph 1 No. 2 BGB). The special legal provisions for tangible third-party claims for release (Section 438 Paragraph 1 No. 1 BGB), the provisions regarding the fraudulent actions of the seller (Section 438 paragraph 3 BGB) and the supplier’s recourse claims for final deliveries to a consumer (Section 479 BGB) shall also not be affected.
The above statutes of limitation under the law on the sale of goods shall also apply to the Customer’s contractual and non-contractual claims for damages based on defective goods, unless the application of the regular statutory statutes of limitation (Sections 195 and 199 BGB) would result in shorter statutes of limitation in individual circumstances. The statutes of limitation under product liability law shall not be affected in this case. Other than that, the statutory statutes of limitation shall apply exclusively to the Customer’s claims for damages in accordance with Section 8.
In addition to the above statutes of limitation under the law on the sale of goods, the following provisions shall apply with regard to warranty granted in the contract for work and services:

(a) The Customer’s rights based on defects that do not affect a building or an item that was created for providing planning and monitoring services in this respect, shall expire by limitation after one year from acceptance of the item. These short statutes of limitation shall not apply if we have engaged in acts of gross negligence as well as in cases of injury to life, limb and health or loss of life of the Customer which fall within our scope of responsibility. Our liability under product liability law shall also remain unaffected.

(b) Any further-reaching claims shall not be affected in the event of the fraudu-lent concealment of defects or assumption of a guarantee for the properties and condition of goods.

Section 10 Data protection

In accordance with Section 28 of the Federal Data protection Act (Bundesdat-enschutzgesetz – BDSG), we herewith point out that the data required for processing business transactions is processed, stored and used with the aid of a EDP system in accordance with Section 33 BDSG. It goes without saying that personal data shall be treated as confidential.

Section 11 Governing law and place of jurisdiction

These GTC and all legal relationships between us and the Customer shall be governed by the laws of the Federal Republic of Germany under exclusion of all international and supranational (contractual) statutory regulations, particularly the United Nations Convention on Contracts for the International Sale of Goods (CISG). The conditions and effects of the retention of title in accordance with Section 6, on the other hand, shall be governed by the laws in the respective storage location of the goods, if these state that the selected governing law in favour of German law is impermissible or ineffective.
In the event of the Customer being a business person within the meaning of the German Commercial Code, legal entity under public law or special trust under public law, the exclusive, including international, place of jurisdiction for all disputes arising directly or indirectly from this contractual relationship, shall be our head office in Celle, Germany. We may, however, also initiate proceedings before the courts in the general place of jurisdiction of the Customer.