Delivery and sales conditions
of FlexBio Technologie GmbH
Delivery and sales conditions in the business area with companies and legal entities under public law
- The following terms and conditions apply to all contracts concluded for the delivery of wastewater treatment systems, partial components, any system accessories, spare parts for wastewater treatment systems and services between FlexBio Technologie GmbH (hereinafter referred to as FlexBio) and the business and contractual partner (hereinafter referred to as customers). These also apply to all future legal transactions, even if they are not expressly agreed again. All content-wise contradicting and supplementary as well as additional terms and conditions of the customer, which FlexBio does not explicitly recognize, are ineffective for FlexBio, even if they are not expressly contradicted. You will also not receive the order
- All agreements made between FlexBio and customers in connection with delivery contracts must be made in writing and are declared in the corresponding contracts, these terms and conditions and the order confirmation from FlexBio. All agreements must be approved by at least one managing director of FlexBio. This also applies to verbal subsidiary agreements.
- These conditions are deemed to be accepted at the latest when the delivery items or services are accepted. The customer is not countersigning
2 Offer and order
- Offers from FlexBio are subject to change and non-binding. Unless otherwise stated in the order, FlexBio is entitled to withdraw this contract offer in writing within 4 weeks of receipt by FlexBio, e.g. B. by order confirmation. With the order, the customer declares that he accepts the offer made by FlexBio and in particular the data, facts and information on which the offer is based as binding. The same also applies to amendments or amendments to the contract.
- Drawings, illustrations, yield estimates, techn. FlexBio reserves the right of ownership and copyrights to information, cost estimates, samples and other documents or information of a tangible and intangible nature (also in electronic form). They may not be made accessible to third parties and may only be used by the customer for the intended use of the delivery item. They are only approximate unless they have been expressly designated as binding by FlexBio
- Unless otherwise stated, FlexBio adheres to the prices included in the offer 7 days after the offer date. The prices specified by FlexBio in the order confirmation plus the respective statutory value added tax. Additional deliveries and services are made separately
3 Scope of deliveries
- The underlying written order confirmation from FlexBio is decisive for the scope of delivery and service.
- Delivery periods and dates are always non-binding, unless they have been expressly guaranteed in writing. Deadlines do not begin as long as all details of an order have not been clarified or the necessary permits or releases have been made
- If and to the extent that technical reports or statements from third parties are required for the permit application, e.g. stability certificates, subsoil investigations, odor, noise, nature conservation and fire protection reports, as well as reports and concepts in accordance with the Hazardous Incident Ordinance and landscape maintenance specialist contribution as well as drainage applications from the water authorities, these are not part of FlexBio’s service and not included in the agreed remuneration, unless this is explicitly listed in the service description of the offer.The customer will provide FlexBio free of charge at the contractually agreed times after coordination between the customer and FlexBio with regard to the expert, task and scope of the expert’s report. Alternatively, the parties can agree that FlexBio will commission the expert opinion in the name and for the account of the customer.
- Weight, measurement, performance, yield and consumption values specified by FlexBio as well as other information on the delivery item are only approximate values, regardless of the type or location of their reproduction. Only those properties of the delivery item that have been expressly guaranteed by FlexBio in a written guarantee are considered guaranteed within the meaning of § 443
- FlexBio reserves the right to make changes to the construction or shape of the delivery item and the conception of the processes in the delivery item, provided that the delivery item is not significantly changed and the changes are reasonable for the customer
- Other services, such as the assembly, installation and commissioning of the delivery item, are only part of the scope of the order if they are specifically agreed. If such services are taken over by FlexBio, the customer undertakes to fully cooperate in the provision of these services. If we are commissioned with the installation of equipment, the customer creates all the prerequisites in good time at his own expense to enable rapid assembly by FlexBio.
- At our request, this includes in particular the provision of technically suitable German-speaking specialists and assistants, equipment, energy, water and other work and operating equipment. In particular, the customer must ensure adequate access to the construction site / installation site and sufficient space to provide the services, create the necessary structural conditions and any necessary permits at their own expense
- The customer bears the costs for any delay or necessary measures due to a construction site that has not been prepared. This also applies in particular if, due to the inadequate preparation of the construction site, equipment cannot be installed, has to be stored or has to be returned.
4 Prices and Services
- Unless otherwise agreed, the prices of FlexBio apply from the manufacturer’s warehouse at the current market price. Furthermore, packaging, assembly, commissioning and insurance costs as well as freight and statutory VAT are not included in the price
- The prices are based on the market price prevailing at the time of the order confirmation. If there is a price increase for this market price after the order confirmation and before the delivery date, FlexBio is entitled to pass the price increase on to the customer. The customer is obliged to accept such a justified increase in the price by up to 5%. The customer has the right to withdraw from the contract if the price increase is more than 5%. The customer must declare his withdrawal from the contract within a period of 14 days after invoicing, otherwise the price increase is deemed to be
- The full price of the total service is to be paid as follows: 50% of the order total is due when the contract is signed, a further 40% after delivery and commissioning and the final payment of 10% plus any additional services upon final acceptance.
- Unless otherwise agreed in writing with the customer, the full purchase price without deduction of discount or similar is due for payment within 7 days of receipt of the invoice by the customer.
- The customer is only entitled to offset if the counterclaims have been legally established or recognized by FlexBio or are undisputed. This also applies to the assertion of notices of defects.
- The customer is only authorized to exercise a right of retention if his counterclaim is based on the same delivery contract
- If the customer is in arrears with payments – if partial payments have been agreed with one installment, any outstanding partial payments are due immediately. The customer is in default even without a reminder if he does not pay the purchase price within 10 days of the due date and receipt of the invoice
- If the customer is in default, FlexBio is entitled to demand interest at the rate of 8% pa above the base rate, but at least 12% a. However, the interest is not to be set below the statutory interest rate if FlexBio proves a charge with a higher interest rate or the customer proves a lower charge.
- If the customer does not meet his payment obligations, in particular if a check or bill of exchange is not honored, or if there are specific indications of the customer’s creditworthiness or insolvency, FlexBio is entitled to pay the entire remaining debt immediately
- For payments by the customer that are not made directly to FlexBio Technologie GmbH or to an expressly authorized person, FlexBio does not take over any payment receipts
5 inspection or maintenance work, maintenance work
- If FlexBio is commissioned to perform inspection and maintenance work or maintenance work, the remuneration is based on expenditure plus travel costs and travel time for the outward and return journey.
- If the maintenance work cannot be carried out without a previous extensive inspection of the system, FlexBio will carry out the inspection immediately, unless the customer decides otherwise. The scope of the inspection is to be limited to what is necessary. The remuneration is based on expenditure plus travel costs and travel times for the outward and return journey. FlexBio will immediately submit an offer for the maintenance work to the customer. The customer is obliged to accept or reject the offer immediately. With the acceptance are the services offered
6 Completion and delivery times
- The dates and deadlines specified by FlexBio are non-binding, unless otherwise expressly agreed in writing
- The period begins as soon as all details of the offer have been defined and both parties have agreed on all terms of the transaction. Compliance with them presupposes the fulfillment of the customer’s contractual obligations, in particular the agreed terms of payment,
- Unforeseen events that are beyond the control of FlexBio, e.g. strikes, operational disruptions, lockouts, exclusions – in their own company or at the subcontractor as well as force majeure extend the delivery period appropriately, even if they occur during a delay in delivery. The same applies if official and other approvals from third parties and documents required for the execution of deliveries or information from the customer required for the execution of the delivery are not received in time, as well as in the case of subsequent amicable changes to the order. FlexBio will inform the customer of any emerging delays as soon as possible
- If FlexBio culpably, this means at least Due to gross negligence, the customer is unable to meet an expressly agreed deadline or is in default for other reasons, the customer must grant him a reasonable grace period. This begins on the day FlexBio receives the written notice of default. If this grace period expires without success, the customer is entitled to withdraw from the contract.
- If the delay in delivery for which FlexBio is responsible is based on the culpable breach of an essential contractual obligation, FlexBio is liable in accordance with the statutory provisions, whereby its liability is limited to the foreseeable, typically occurring damage. This is determined in the amount by the invoice value of the delivery / service
- FlexBio is partial services to a reasonable extent
- The other statutory claims and rights of the customer due to a delay in delivery by FlexBio remain unaffected.
7 Transfer of risk, decrease
- The risk of accidental loss and accidental deterioration of the delivery item is transferred to the transfer of risk for other services (e.g. partial deliveries, individual components, spare parts or other accessories) with the handover, in the case of dispatch with the delivery to the forwarding agent, carrier or other third party appointed to carry out the dispatch . The handover is the same if the customer is in default of acceptance
- Insurance against damage in transit is only provided at the request and expense of the
- If, after the delivery item or partial deliveries have been dispatched, but before the transfer of risk, FlexBio’s service is damaged or destroyed by force majeure, sabotage, war or similar circumstances for which FlexBio is not responsible, FlexBio is entitled to payment of the value of the damaged or destroyed
- If the client or his representative accepts material from a forwarding company or the like, for example, he is obliged to check the goods for perfect condition before acceptance and, if necessary, to check the defects in writing with the forwarding agent
- Delivered items are to be accepted by the customer (even in the case of insignificant defects), irrespective of the warranty rights regulated below.
- The acceptance of the services of FlexBio takes place in the case of a wastewater treatment plant with the notification of the first successful commissioning, of which an acceptance report is produced. Minor defects that have an insignificant impact on the operation of the system or remaining work do not entitle the customer to refuse acceptance. The wastewater treatment plant is deemed to have been accepted if the customer does not complain within 7 days of the notification of readiness for operation, serious defects or significant remaining work that endangers or significantly restricts the operation of the plant. The customer is expressly aware of this fiction of acceptance in the notification of operational readiness
- Assemblies are only carried out by FlexBio if agreed in writing
- In these cases, the calculation is based on the previously specified lump sums, otherwise on the basis of the FlexBio hourly, kilometer and trigger rates valid at the time the service is provided, whereby the hours for arrival and departure as well as the kilometers for the outward and return journey (e.g. . Currently 1.35 € / km) will be invoiced
- If a lump sum has been agreed for the assembly and the installation or commissioning is delayed through no fault of FlexBio, all associated costs for waiting times, travel and other expenses of the assembly staff are borne by the customer. If after completion of the assembly work, for reasons for which the customer is responsible, the commissioning and takeover of the system or system parts cannot take place immediately, the subsequent, additional installation work must be paid by the customer
- The customer certifies the working hours / the work performance of the FlexBio employees on the form presented to him after the work has been completed, weekly for longer assemblies. Discrepancies are to be noted. Travel and waiting hours are counted as working hours. The lack of a signature does not exclude the calculation of our services according to the information provided by the assembly staff.
- The auxiliary workers and aids required for all assembly work, such as lifting, set-up and transport devices, construction water and site electricity, are to be made available to the assembly personnel free of charge. Assistants are to be deployed according to the instructions of the fitters. Unless otherwise agreed in writing, the customer bears the costs of using a crane truck.
- Sufficiently large, dry, heatable and lockable rooms are to be made available for storing the system components, the material / the tools. The customer bears the risk / responsibility for parts that are lost on the construction site.
- The customer is obliged to inform himself about the current status of the structural conditions by FlexBio technicians before leaving the construction site. Damage of any kind for which FlexBio is to be held responsible must be reported to FlexBio by its fitters before leaving the construction site. FlexBio is not responsible for any damages claimed afterwards
- Changes, insofar as such are requested by the authorities, with regard to material and effort, are to be paid by the customer and will be invoiced separately by FlexBio
9 Claims for defects
- The customer must check the delivery for completeness, transport damage, obvious defects, condition and properties. Obvious defects must be reported to FlexBio in writing by the customer immediately, but no later than 1 calendar week after delivery or assembly of the delivery item. Insignificant defects must be reported to FlexBio within 6 calendar weeks. The delivery item is to be kept ready for examination by FlexBio in the same condition as when the damage was discovered, unchanged. Any violation of these obligations excludes any liability on the part of FlexBio. This also applies to notifications of defects that are complained about after being mixed with other goods or further processing and processing
- Insignificant and marginal deviations in execution are not considered
- A valid notification of a defect obliges FlexBio to provide supplementary performance, unless FlexBio is entitled to refuse supplementary performance due to legal requirements. A reasonable period for subsequent performance is to be granted separately by the customer for each defect.
- FlexBio reserves the right to remedy the defect by means of repair or replacement. The statutory reduction claims of the customer remain unaffected in the event of a breach of the obligation to supplementary performance by FlexBio. The purchase price reduction and the customer’s withdrawal from the contract are during the subsequent performance period
- The customer has the right to have the defect remedied himself only in urgent cases where operational safety is at risk, about which the customer has to inform FlexBio immediately.
- FlexBio accepts no liability for defects resulting from improper use of the delivery item. Improper use is based, among other things, on overstressing or inadequate assembly of the delivery item on the part of the customer and third parties who have been commissioned for such activities. For defects that arise as a result of material-related wear and tear or the use of unsuitable operating materials or incorrect or negligent maintenance of the delivery item as well as insufficient advance payments
- FlexBio Technologie GmbH assumes no liability for damage that occurs during the construction phase.
- The wastewater treatment plant is only to be put into operation after complete completion and technical acceptance by the manufacturer. For damage caused by early commissioning on the part of the builder or a third party, the builder is solely liable to the full extent.
- FlexBio is fully liable for damage caused as a result of grossly negligent or willful conduct by you, your legal representative or an authorized agent. As well as for damages that are regulated according to the Product Liability Act.
- FlexBio is also liable for damage caused by simple negligence, insofar as this negligence concerns the breach of contractual obligations, compliance with which is of particular importance for achieving the purpose of the contract (cardinal obligations). However, FlexBio is only liable if the damage is typically associated with the contract and foreseeable. In addition, FlexBio is liable for simple negligent breaches of secondary obligations that are not essential to the contract
- Liability for indirect or consequential damage is excluded. This applies in particular to lost profits, no savings, failure damage and environmental damage to waters. Damage based on customer interventions in system technology, technical processes or incorrect assembly of subcomponents must be treated equally. Separately from this, FlexBio is only liable to the extent of the replacement performance of the existing ones
- A free consultation service excludes any liability claims. When planning, we are only responsible for the professional use of given values and data. No liability is assumed in the event of changes to the planning basis or subsequent statements as being incorrect. There is also liability for forecast values, projections, assumptions about savings and gas yields
11 Reservation of title
- FlexBio retains ownership of a delivery item until the full order amount or all payments from the delivery contract have been received; this also applies to delivery items that are installed as sub-components in existing and new systems.
- The customer must inform FlexBio immediately in writing of all access by third parties, in particular of enforcement measures as well as other impairments of his property. The customer has to reimburse FlexBio for all damages and costs caused by a violation of third party access
- If the customer does not meet his payment obligation despite a reminder from FlexBio, FlexBio can demand the surrender of the delivery item still in its ownership without prior notice. All costs incurred, such as transport costs, are to be borne by the customer. FlexBio’s right to withdraw from the contract remains unaffected during the seizure of the delivery item. In the event of the recovery of the delivery item received by FlexBio, the recovery proceeds from claims against the customer – less reasonable recovery costs –
12 Use of software / liability
- If software is included in the scope of delivery, the customer is granted a non-exclusive right to use the software supplied, including the documentation. It is made available for use on the delivery item intended for it. Use of the software on more than one system is
- The customer may only reproduce, revise and translate the software to the extent permitted by law (§§ 69a ff. Copyright Act). The customer undertakes to provide manufacturer information
– especially copyright notices – not to be removed or to be changed without FlexBio’s prior express consent.
- All other rights to the software and the documentation, including copies, remain with FlexBio or the software supplier. Sublicensing is not permitted.
- Unless otherwise stated below, further claims by the customer, regardless of the legal grounds, are excluded, unless damage was caused intentionally. FlexBio is therefore not liable for damage that has not occurred to the goods themselves, such as lost profit, lack of savings or other financial damage to the customer. Insofar as FlexBio’s liability is excluded or limited, this also applies to the personal liability of employees, representatives and vicarious agents of FlexBio.
- FlexBio draws attention to the fact that, according to the state of the art, it is not possible to rule out errors in the software under all application conditions and combinations. The subject of the delivery is therefore only software that is basically usable in terms of the product description and the operating instructions. Otherwise, no guarantee is given that the software and its data structures are free from errors. Should the software or the hardware equipped with it be defective, the customer can request replacement delivery / supplementary performance during the warranty period of one year from delivery. To do this, the customer must return the hardware delivered to him and any associated data storage media along with backup copies. The customer must take appropriate measures to ensure that damage does not occur or is kept within limits. The customer is responsible for the type and scope of the data backups and releases FlexBio from liability for any data loss.
13 Customer Responsibilities and Additional Costs
- The customer is responsible for ensuring that equipment ordered in accordance with the offer or order confirmation can be installed in his system. The customer remains obliged to accept and pay for the equipment ordered even if this equipment cannot be installed in his system. This applies in particular to individual deliveries of control cabinets and pre-tested combined heat and power units with regard to the electrical fitting into the system of the
- The customer is alone for network quality and network security
- It is up to the customer to indicate which operating electricity he can provide and which electricity he can feed in. If this information is omitted, we will provide standard norms in accordance with the circumstances given by us. Costs that arise due to non-reporting or non-reporting by the customer are borne by the
- If additional network protection parameters are required, the additional costs for the connection are borne by the customer alone. It is the responsibility of the customer to specify the technical specifications of his utility company according to which the feed-in is possible and which technical features, eg four-pole network coupling switch, electronic soft start or connection current limits, are required. The associated additional costs are borne by the
- In the case of our commissioning with the installation of equipment, the customer creates all the prerequisites in good time at his own expense in order to enable rapid assembly by FlexBio Technologie GmbH.
- At our request, this includes, in particular, the provision of technically suitable German-speaking specialists and assistants, equipment, energy, water and their work and operating equipment.
- The customer is obliged to prepare the construction site so that the delivered equipment can be installed without any problems. The access to the assembly areas must be leveled at floor level and have sufficient load-bearing capacity for vehicles. Preparatory work such as earthwork, foundation, construction and scaffolding work must be completed. The foundations must be completely dry and set
- The customer bears the costs for any delays and necessary measures resulting from a construction site that has not been prepared. This also applies in particular if devices cannot be installed, stored or have to be transported back due to the inadequate preparation of the construction site.
14 Statute of Limitations
Unless otherwise specified in these terms and conditions, claims against FlexBio expire within 1 year from the start of the limitation period. This does not apply to claims according to § 438 I No. 2 BGB and acc. Section 634a I No. 2 BGB. These expire in accordance with the statutory provisions.
15 place of jurisdiction
As far as permissible, the place of jurisdiction is Göttingen.
16 Final provision, applicable law, severability clause
- The relationships between the contracting parties are governed exclusively by the law applicable in the Federal Republic of Germany – to the exclusion of the CISG. The application of the uniform law on the international purchase of movable property as well as the law on the conclusion of international sales contracts for movable property is excluded.
- The customer is not entitled to assign claims from the purchase contract without the consent of the seller.
- Should a regulation of these general terms and conditions be ineffective or impracticable, this affects the effectiveness of the remaining general terms and conditions