General terms and conditions of the
FlexBio Technologie GmbH
General Terms and Conditions in Business with Companies and Legal Entities under Public Law
1. scope of validity
- 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. They shall also not become part of the contract upon acceptance of 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. A countersignature of the customer is not required.
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 shall also apply to additions 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 will be charged 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 until all details of an order have been clarified or any required approvals or releases are missing.
- 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 such properties of the delivery item which have been expressly warranted in a written warranty declaration on the part of FlexBio shall be deemed to be guaranteed within the meaning of § 443 BGB.
- FlexBio reserves the right to make changes to the design or form of the delivery item and the conceptual design of the processes in the delivery item if the delivery item is not significantly changed as a result and the changes are reasonable for the customer.
- Other services, such as assembly, installation and commissioning of the delivery item, shall only be included in the scope of the order if they have been 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 shall provide adequate access to the construction site/installation site and sufficient space for the performance of the services, create the necessary structural conditions and obtain any necessary permits at its 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, 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 shall be deemed accepted.
- The full price of the total service is to be paid as follows: 50% of the order sum is due on signing of the contract, a further 40% after delivery and commissioning, and the final payment of 10% plus any additional service on final acceptance.
- Unless otherwise agreed with the customer in writing, the full purchase price is due for payment within 7 days after receipt of the invoice by the customer without deduction of discount or similar.
- 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 shall only be entitled to exercise a right of retention if its 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 shall be in default even without a reminder if he does not pay the purchase price within 10 days after the due date and receipt of the invoice.
- If the Customer is in default, FlexBio shall be entitled to charge interest at a rate of 8% p.a. above the base interest rate from the relevant date, but at least 12% p.a.. However, the interest shall not 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 fails to meet its payment obligations, in particular if a check or bill of exchange is dishonored, or if there are concrete indications of the Customer’s credit unworthiness or inability to pay, FlexBio shall be entitled to demand immediate payment of the entire remaining debt.
- For payments of the customer, which are not made directly to the company FlexBio Technologie GmbH or an expressly authorized person, FlexBio assumes no liability with regard to the receipt of payment.
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, the offered services are commissioned.
6. completion and delivery deadlines
- The dates and deadlines stated by FlexBio are non-binding unless expressly agreed otherwise 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 beyond the control of FlexBio, e.g. strike, operational disruptions, lockout, exclusion – in the own company or at the subcontractor as well as force majeure shall 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 as soon as possible of any emerging delays.
- If FlexBio is at fault, i.e. min. is unable to meet an expressly agreed deadline due to gross negligence or is in default for other reasons, the customer shall grant it 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 shall be limited in amount by the invoice value of the delivery/service.
- FlexBio is entitled to partial performance 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, acceptance
- The risk of accidental loss and accidental deterioration of the delivery item shall pass to the customer upon handover of the delivery item (e.g. partial deliveries, individual components, spare parts or other accessories); in the case of shipment, the risk shall pass upon delivery to the forwarding agent, carrier or other third party designated to carry out the shipment. The handover is equal if the customer is in default of acceptance.
- Insurance against transport damage shall only be taken out at the order and expense of the customer.
- If after dispatch of the delivery item or of partial deliveries, but before the passing of risk, FlexBio’s performance is damaged or destroyed by force majeure, sabotage, war or similar circumstances for which FlexBio is not responsible, FlexBio shall be entitled to payment of the value of the damaged or destroyed performance.
- If the builder or his representative accepts material, e.g. from a forwarding agent or similar, he is obliged to check the goods for perfect condition before acceptance and, if necessary, to notify the forwarding agent in writing of any defects.
- 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 shall be expressly informed of this fiction of acceptance in the notification of readiness for operation.
- Assembly work shall only be carried out by FlexBio if it has been agreed in writing.
- In these cases, the calculation is based on the previously determined lump sums, otherwise based on the hourly, kilometer and trigger rates of FlexBio valid at the time of the service provision, whereby the hours for arrival and departure as well as the kilometers for the outward and return journey (currently 1.35 €/km) are also invoiced.
- If a lump sum has been agreed for the installation and if the installation or commissioning is delayed through no fault of FlexBio, all associated costs for waiting times, travel and other expenses of the installation personnel shall be borne by the customer. If, after completion of the installation work, commissioning and acceptance of the plant or plant components cannot take place immediately for reasons for which the customer is responsible, the subsequent, additional installation work must be paid for by the customer.
- The customer shall certify the working time/performance of FlexBio’s employees on the form provided to him after the work is completed, or weekly in case of 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 must be provided for storing the plant components, material/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, as far as such are required by authorities, regarding material and effort, are to be paid by the customer and will be invoiced separately on the part of FlexBio.
9. claims for defects
- The customer must check the delivery for completeness, transport damage, obvious defects, condition and properties. Obvious defects shall be notified to FlexBio by the customer in writing without delay, but no later than one 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 notices of defects which are objected to after mixing with other goods or further processing.
- Insignificant and marginal deviation in execution shall not be considered as a defect.
- 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. During the period of supplementary performance, the reduction of the purchase price and the withdrawal from the contract on the part of the customer are excluded.
- 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. The same shall apply to defects arising as a result of material-related wear and tear or the use of unsuitable operating materials or the faulty or negligent maintenance of the delivery item as well as insufficient preliminary work.
- FlexBio assumes no liability for damage occurring during the construction phase.
- The wastewater treatment plant is only to be put into operation after complete completion and technical acceptance by the manufacturer. The client or third parties shall be solely and fully liable for any damage caused by premature commissioning.
- 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. FlexBio shall not be liable for simple negligent breaches of non-contractual secondary obligations.
- Liability for indirect or consequential damage is excluded. In particular, this applies to lost profits, lost savings, outage 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. Independently of this, FlexBio shall only be liable to the extent of the indemnification of the liability insurance existing on its part.
- 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 proof of incorrectness. Likewise, liability for forecast values, extrapolations, assumptions of savings as well as gas yields is excluded.
11. retention 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 shall compensate FlexBio for all damages and costs resulting from a violation of access by third parties.
- 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 in this connection, such as transport costs, shall 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 utilization of the returned delivery item on the part of FlexBio, the utilization proceeds shall be credited against claims against the customer – less reasonable utilization costs.
12. software use/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 prohibited.
- The customer may only reproduce, revise and translate the software to the extent permitted by law (§§ 69a ff. Copyright Act). The customer undertakes not to remove manufacturer’s details – in particular copyright notices – or to change them without the prior express consent of FlexBio.
- 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 shall therefore not be liable for any damage not caused to the goods themselves, such as loss of profit, loss of savings or other financial losses of 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 nevertheless be defective, the customer may demand replacement delivery/subsequent 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. responsibilities of the customer 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 cogeneration units with regard to electrical fit into the customer’s plant.
- The customer is solely responsible for the 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 incurred due to non-disclosure or misdisclosure by the customer shall be borne by the customer.
- If additional network protection parameters are required, the additional costs for the connection are borne by the customer alone. It is the customer’s responsibility to specify the technical specifications of his utility company according to which the feed-in is possible and which technical features, e.g. four-pole mains coupling switches, electronic soft start or inrush current limitations, are required. The customer shall bear any additional costs associated with this.
- In the event that we are commissioned with the installation of equipment, the customer shall, at his own expense, create all conditions in good time to enable FlexBio to install the equipment quickly.
- 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 stipulated in these Terms and Conditions, claims against FlexBio shall become statute-barred within one year from the commencement 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. pandemic clause
- Due to a possible development and resulting actions that may be taken globally, nationally and locally in connection with a public health emergency declared by the World Health Organization (WHO) related to the pandemic, the delivery of goods offered by Contractor and/or the performance of services may be adversely affected.
Among other things, the pandemic and its effects can lead to
- excessive staff sickness rates,
- Difficulties or increased costs in obtaining personnel or goods,
- Inability to transport goods or people across borders, other travel restrictions, or mobility limitations,
- personnel and/or material shortages that cause delays or other adverse circumstances affecting the delivery of goods or services.
- Contractor shall therefore be entitled to request an adjustment of established schedules or the postponement of delivery dates/times and/or to charge additional reasonable costs if, due to the above-mentioned effects, Contractor’s delivery schedule is adversely affected and/or Contractor has to bear additional costs.
16. place of jurisdiction
As far as permissible, the place of jurisdiction is Göttingen.
17 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 any provision of these General Terms and Conditions be invalid or unenforceable, this shall not affect the validity of the remaining provisions of these General Terms and Conditions.