General terms and conditions for Biomass CHP customers (entrepreneurs).
1. general scope of application
(1) The offer of Spanner Re² GmbH (hereinafter referred to as Spanner Re²) in the product area of wood gasification is directed exclusively to entrepreneurs who use the services in their independent professional, commercial, official or official activities - in particular to registered traders, legal entities under public law and also to special funds under public law within the meaning of § 310 BGB (German Civil Code). Service is a delivery or other service, including contracts for work and services. Evidence of the entrepreneurial character must be provided by the Re² tensioner on request. With the order, the customer assures that the ordered services will be used exclusively for the aforementioned purposes.
(2) Spanner Re² renders all services vis-à-vis entrepreneurs exclusively on the basis of these General Terms and Conditions of Sale and Delivery (GTC) - irrespective of the type of contract the transaction is assigned to (e. g. purchase contract, contract for work and services, contract for work and materials, lease agreement). These GTC shall also apply to future business with the customer, even if not expressly referred to.
(3) Spanner Re² contradicts all terms and conditions of the customer. These shall not become an integral part of the contract even if the customer orders or confirms them with reference to his GTC and Spanner Re² does not expressly object.
(4) In contrast to individual agreements between the parties or special provisions in contractual documents of the respective individual transaction, the provisions of these General Terms and Conditions of Business shall rescind.
2 Effect of Offer and Acceptance
(1) Unless expressly stated otherwise, Spanner Re²'s quotations are non-binding and subject to confirmation - subject to the following contractual regulation. Offers from Spanner Re² are subject to the reservation of self-delivery.
(2) The customer's order is a binding offer. Spanner Re² can accept this offer within two weeks after receipt by sending an order confirmation.
3. terms of delivery
(1) Unless expressly agreed otherwise in writing, weight, measurement and other technical data in drawings, brochures, illustrations and other documents as well as business calculations are approximate and non-binding. In particular, they do not represent any warranted statements of quality or guarantees.
(2) The subject matter of the contract is exclusively the product sold with its characteristics, features and intended use as described in the product description in the individual individual contract. Other or more extensive properties and characteristics or a purpose of use going beyond this are only agreed upon if they have been expressly confirmed by Spanner Re² in writing.
(3) Spanner Re² provides its services "ex works" (i. e."ex works" according to Incoterms 2020,8th revision) without insurance, packaging and transport.
4. prices and terms of payment
(1) All prices are understood to be "ex works" and are increased by the value added tax to be paid. Decisive for the timeliness of a payment is the credit note on the account of Spanner Re².
(2) The deduction of discounts is only permissible if this has been expressly agreed in writing beforehand.
(3) Payments shall be made as follows (due date):
a) 40% of the purchase price (of the value of the delivery or other service) is to be paid by the customer 10 days after the date of the order (first instalment).
b) 60% of the purchase price is to be paid 15 working days before the delivery date notified by Spanner Re² (second instalment).
The compensation claims of Spanner Re² arising from delivery transactions are due immediately without deduction.
(4) If contract for work and services law is applicable, the due date of the remaining amount shall be replaced by the acceptance of the services of Spanner Re² or the time at which the customer makes use of the services referred to in No. 3 b; the event which occurs earlier shall be decisive in each case.
(5) The consequences of default shall be governed by general law (§ 288 BGB) with the proviso that in the event of default by the customer, all claims existing against him arising from the business relationship shall become due for payment immediately.
(6) The customer may only offset or exercise a statutory right of retention if and to the extent that his counterclaims are undisputed or have been established by declaratory judgment.
(7) Bills of exchange and cheques shall only be accepted on account of performance. The customer shall bear the costs of bills of exchange and cheques including discount charges.
(8) If Spanner Re² is obliged to make advance payment, the prerequisites of § 321 BGB (German Civil Code) shall be deemed to have already occurred if the customer has not honoured a bill of exchange or cheque, unless the customer is not responsible for this. In the event that Spanner Re²'s claims for payment are jeopardised due to a deterioration in the creditworthiness of the customer, the customer shall be entitled to receive a refund.
(9) Spanner Re2 is entitled to offset payments against the oldest claim.
(10) In the event of breach of contract, in particular default in payment, Spanner Re2 is entitled, without prejudice to its other contractual and statutory rights, to withdraw from the contract after a reasonable period of grace has expired.
5. Delivery time, delivery and transfer of ownership
(1) The confirmation of delivery date is subject to the customer responding in full to all of Spanner Re2’s technical and commercial questions and the customer’s compliance with all other requested duties and obligations. Unless otherwise agreed, the delivery time specified by Spanner Re² is always non-binding.
(2) The delivery date shall be deemed to be the dispatch or the time of notification of the readiness for dispatch of the delivery item "ex works".
(3) The customer shall inspect the delivery item immediately upon receipt for completeness, correctness and other absence of defects and shall notify Spanner Re² in writing of any defects without delay within a period of ten (10) working days from receipt of the delivery item. Hidden defects must be reported in the same form within the aforementioned period of time after their discovery. If the notification is not made in time, the service shall be deemed to have been approved.
(4) At the customer's request, Spanner Re² will take over delivery for the customer as a service after a written declaration of consent. All costs arising therefrom shall be borne by the customer and are due for payment immediately. The customer's claims against Spanner Re² for defective or incomplete services must be asserted by the customer within thirty (30) days from receipt of the delivery item and documented accordingly.
(5) Delays in delivery due to force majeure or unforeseen circumstances for which Spanner Re² is not responsible - such as industrial disputes and their consequences - shall not lead to delay on the part of Spanner Re². An agreed delivery period shall be extended by the duration of the hindrance plus an appropriate start-up period. If the impediment lasts longer than six months, both parties shall be entitled - after expiry of a reasonable period of grace set for the other party - to withdraw from the unfulfilled part of the contract. Claims for damages are excluded in this case.
(6) In the event of a delay in delivery by Spanner Re², the customer may only withdraw from the contract if he has set a reasonable grace period for performance or supplementary performance in writing, stating that he will refuse to accept the services after the expiry of the grace period. The claim to fulfilment of the contract is excluded after fruitless expiry of the deadline. If Spanner Re² is only in arrears with part of the service, withdrawal is only permissible on account of this part, unless the customer is objectively not interested in the part already delivered.
(7) The provisions of paragraph 6 shall not apply if a fixed commercial transaction has been agreed. In this case, Spanner Re²'s liability is limited to the foreseeable damage typical for this type of contract.
(8) If the customer is in default of acceptance or if the customer violates other obligations to cooperate, Spanner Re² can demand compensation for the damage incurred.
(9) If the delivery time is extended at the customer's request, Spanner Re² may charge the customer with the resulting costs.
(10) Spanner Re² is entitled to render partial services.
6 Transfer of risk
(1) The transfer of the risk of accidental loss or accidental deterioration of the performance (s) or delivery item shall be governed by the provisions of the "ex works"trade clause. If Spanner Re² undertakes the transport of the delivery item to the place of destination, the customer shall bear the risk of loss for the delivery item until delivery at the place of destination, irrespective of any transfer of title.
(2) If the customer is in default of acceptance, the risk shall also pass to him.
(3) If expressly requested, Spanner Re² shall take out transport insurance for the delivery at the customer's expense. Spanner Re² may at any time demand an advance on the expected costs incurred.
7 Warranty for material defects
(1) The warranty period is one year. If the service is defective, Spanner Re²'s warranty for defects shall initially be limited to the customer's claim for subsequent performance, which Spanner Re² may, at its option, either remedy the defect or deliver a defect-free item.
(2) If Spanner Re² is not prepared or not in a position to remedy the defect, or if Spanner Re² is not prepared to remedy the defect, or if such remedy is unreasonable, or if it is delayed beyond a reasonable period of time for reasons for which Spanner Re² is responsible, and/or if the remedy fails in any other way, the customer shall be entitled, at his option, to withdraw from the contract or demand a price reduction (reduction). customer's right to assert warranty claims also depends on the complete fulfilment of all contractual obligations towards Spanner Re², in particular all payment obligations.
(9) Any claim of the customer for warranty is excluded when buying used items.
(10) Spanner Re² does not accept any liability for items which have been handed over to the customer free of charge for testing.
8 other liability
(1) The liability of Spanner Re² as well as the liability of the employees and the other auxiliary persons (in particular the vicarious agents and vicarious agents) shall be determined, insofar as it is not warranty liability, exclusively in accordance with Section 8 of the General Terms and Conditions (Other Liability) of Spanner Re². Further claims are excluded. It does not matter on which legal basis the liability is based (contractual or non-contractual, e. g. due to positive breach of contract, fault during contract negotiations). consulting liability, infringements of intellectual property rights or tort liability).
(2) Spanner Re² shall only be liable for damage that has not occurred to the delivery item in the following cases
gross negligence on the part of the owner, the executive bodies or executive staff,
in the event of culpable injury to life, limb, health and property.
without limitation in the case of personal injury or material damage to privately used objects - insofar as liability is mandatory.
(3) In case of negligence, Spanner Re²'s liability is limited to the foreseeable damage.
(4) No liability shall be assumed for slight negligence if the Purchaser could obtain compensation payments from an insurance policy customary in the industry (e. g. machinery, assembly, damage caused by natural hazards, business interruption or transport insurance). Financial losses, such as loss of use or profit, will not be reimbursed in the event of slight negligence.
9 Retention of title
(1) Spanner Re² retains title to the delivered goods until all payment obligations have been met in full by the customer.
(2) In the event of a delay in payment or an obvious deterioration of the customer's assets, Spanner Re² shall be entitled to take back and repossess the delivered item and to use it. This may in particular be the case if the financial circumstances of the customer have changed adversely or threaten to change, or if the existing securities have deteriorated in value or are in danger of deteriorating. For this purpose, Spanner Re² has to threaten the customer to execute the redemption beforehand and to set the customer a reasonable time limit for the purpose of establishing a contractual condition.
- a) For this purpose, the customer hereby grants Spanner Re² the irrevocable right to enter the place where the subject matter of the contract is located without hindrance and to remove the subject matter of the contract from there.
- b) After the take-back Spanner Re² is authorized to the freehand utilization. The total proceeds from the realisation shall be set off against the customer's liabilities less reasonable realisation costs.
(3) The customer shall treat the delivery item with care - as long as retention of title exists - and in particular shall insure it against fire, water and theft at replacement value. The customer already now assigns the insurance claim for the period of the retention of title to Spanner Re².
(4) In the event of seizures or other interventions by third parties, the customer must point out the retention of title and inform Spanner Re² immediately in writing.
(5) The customer may resell the delivery item in the ordinary course of business which is typical for him. He hereby assigns to Spanner Re² already now all claims arising therefrom, regardless of whether he acted authorized or unauthorized; however, he remains revocably authorized to collect the claims. Spanner Re² may also collect the receivables itself, but will not do so as long as the customer fulfils his obligations to pay the proceeds, does not default on payment and has no other concerns about his solvency. The customer must disclose the assigned claims and their debtors and provide all information necessary for collection, hand over the associated documents and as soon as Spanner Re² is entitled to collect the claims and notify the third party (s) of the assignment in writing. If there is a current account relationship between the customer and third parties in accordance with § 355 of the German Commercial Code (HGB), the assignment in advance also refers to the acknowledged balance or surplus balance up to the amount of the sales claim assigned to Spanner Re².
(6) The processing, transformation or combination of the delivered item by the customer shall always be carried out for Spanner Re². If the delivered item is processed, transformed or combined with other items not belonging to Spanner Re², Spanner Re² shall acquire co-ownership of the new item in the ratio of the value of the delivered item to the value of the remaining items at the time of processing, transformation or combination (final invoice amount including value added tax). In all other respects, the same shall apply to the newly created object as to the objects delivered under retention of title, however, the transfer of the claims from the resale shall be limited to the portion determined in sentence 2.
(7) Spanner Re² shall release securities of its own choice at the customer's request, insofar as the value exceeds the claims by more than 30 percent.
10 foreign trade regulations
(1) Each contractual partner is entitled to refuse performance of the contract if this is impaired or prohibited by foreign trade regulations (e.g. export control and customs regulations, embargoes, other government sanctions) that are applicable to this contract. In these cases, each contractual partner is entitled to terminate this contract to the required extent.
(2) The contracting parties inform themselves immediately after becoming aware of foreign trade regulations that can lead to the restrictions, prohibitions or delays mentioned.
(3) The customer is obliged to provide Spanner Re2 with all information and documents that are required to comply with foreign trade regulations or that are requested by authorities in this regard. These obligations may include, in particular, information about the end customer, the destination and the intended use of the deliveries. Spanner Re2 is entitled to withdraw from the contract or to refuse performance if the customer does not provide it with this information and documents within a reasonable period of time.
(4) The customer is obliged to comply with all applicable foreign trade regulations, even if the deliveries are passed on to third parties or affiliated companies. If the customer violates this obligation, Spanner Re2 is entitled to refuse to fulfill the contract or to terminate this contract for good cause.
(5) Spanner Re2’s liability for damage in connection with or due to the refusal to fulfill the contract or due to its termination of this contract in accordance with Sections 1 to 4 is – to the extent permitted by law – excluded.
11 Confidentiality and copyright
Spanner Re² reserves the proprietary rights and copyrights to illustrations, drawings or other documents - also in electronic or other immaterial form. They may not be made accessible to third parties without the express consent of Spanner Re². This applies in particular to documents that are designated as confidential.
The customer is committed to the principle of strict legality in all actions, measures, contracts and other processes.
13 Choice of law, place of jurisdiction and place of performance
(1) The legal relations between the parties shall be governed exclusively by German substantive civil law, excluding the UN Convention on Contracts for the International Sale of Goods (UNICITRAL/CISG).
(2) The place of jurisdiction for all claims arising from or in connection with this contract is 84088 Neufahrn i. NB. However, Spanner Re² is also entitled to sue the customer at its general place of jurisdiction.
(3) Place of performance for all claims arising from this contract is 84088 Neufahrn i. NB.
14 severability clause
The ineffectiveness or unenforceability of one of the provisions shall not affect the validity or enforceability of the remaining provisions, which shall remain in full force and effect. Stand 2017