General Terms and Conditions of Delivery of Energiereich Consulting
1.1. All deliveries, services and offers from Energiereich Consulting UG (limited liability), Oberstraße 88, 20149 Hamburg (hereinafter “Seller”) are based exclusively on these General Terms and Conditions of Delivery. These are part of all contracts that the seller concludes with his contractual partners (hereinafter also referred to as “customer”) for the deliveries or services offered by him. They also apply to all future deliveries, services or offers to the customer, even if they are not separately agreed again.
1.2. Terms and conditions of the client or third parties do not apply, even if the seller does not object to their validity in individual cases. Even if the seller refers to a letter that contains or refers to the terms and conditions of the customer or a third party, this does not constitute consent to the validity of those terms and conditions.
2. Offer and conclusion of contract
2.1. All offers from the seller are subject to change and non-binding unless they are expressly marked as binding or contain a specific acceptance period. The seller can accept orders or commissions within (14) days of receipt.
2.2. The purchase contract concluded in writing, including these General Terms and Conditions of Delivery and any framework agreement agreements, is solely authoritative for the legal relationship between the seller and the customer.
2.3. Additions and amendments to the agreements made, including these General Terms and Conditions of Delivery, must be in writing to be effective. With the exception of managing directors or authorized signatories, the seller’s employees are not entitled to make verbal agreements that deviate from the written agreement. Telecommunications transmission, in particular by fax or e-mail, is sufficient to ensure the written form.
2.4. Information provided by the seller on the subject of the delivery or service (e.g. weights, dimensions, utility values, resilience, tolerances and technical data) as well as representations of the same (e.g. drawings and illustrations) are only approximately relevant unless the usability for the contractually intended purpose requires an exact match . They are not guaranteed quality features, but descriptions or identification of the delivery or service. Deviations that are customary in the trade and deviations that occur due to legal regulations or represent technical improvements, as well as the replacement of components with equivalent parts are permissible, provided they do not impair the usability for the contractually intended purpose.
2.5. The seller retains ownership or copyright to all offers and cost estimates submitted by him as well as drawings, illustrations, calculations, brochures, catalogues, models, tools and other documents and aids made available to the customer. Without the express consent of the seller, the client may not make these items accessible to third parties, disclose them, use them himself or have them used by third parties or reproduce them. At the request of the seller, he must return these items in full and destroy any copies that may have been made if he no longer needs them in the ordinary course of business or if negotiations do not lead to the conclusion of a contract. An exception to this is the storage of data made available electronically for the purpose of standard data backup.
3. Prices and Payment
3.1. The prices apply to the scope of services and deliveries listed in the order confirmations. Additional or special services will be charged separately. The prices are in EUR from the seller’s place of business plus packaging, statutory value added tax, shipping costs, customs duties for export deliveries, as well as fees and other public charges.
3.2. If the agreed prices are based on the seller’s list prices and the delivery is to take place more than four months after the conclusion of the contract, the seller’s list prices valid at the time of delivery apply (in each case minus an agreed percentage or fixed discount).
3.3. All invoice amounts of the entrepreneur are due for payment immediately from the invoice date without deduction,
3.4. Offsetting against counterclaims by the customer or withholding payments due to such claims is only permissible if the counterclaims are undisputed or have been legally established or result from the same order under which the delivery in question was made.
3.5. The seller is entitled to carry out or provide outstanding deliveries or services only against advance payment or security if he becomes aware of circumstances after the conclusion of the contract which are likely to significantly reduce the creditworthiness of the customer and through which the payment of the seller’s outstanding claims is endangered by the customer from the respective contractual relationship (including from other individual orders to which the same framework agreement applies).
4. Delivery and Delivery Time
4.1. Periods and dates for deliveries and services promised by the seller are only approximate unless a fixed period or date has been expressly promised or agreed. If shipment has been agreed, delivery periods and delivery dates refer to the time of handover to the forwarding agent, carrier or other third party commissioned with the transport, unless expressly stated otherwise by us.
4.2. The seller can – without prejudice to his rights arising from the customer’s default – demand an extension of delivery and service periods or a postponement of delivery and service dates by the period in which the customer does not meet his contractual obligations towards the seller.
4.3. The seller is not liable for impossibility of delivery or for delays in delivery, insofar as these are caused by force majeure or other events that were not foreseeable at the time the contract was concluded (e.g. operational disruptions of all kinds, difficulties in procuring materials or energy, transport delays, strikes, lawful lockouts, lack of labour, energy or raw materials, difficulties in obtaining the necessary official permits, pandemics or epidemics, official measures or the lack of, incorrect or late delivery by suppliers despite a congruent hedging transaction concluded by the seller), which the seller is not entitled to represented. If such events make the delivery or service significantly more difficult or impossible for the seller and the hindrance is not only of a temporary nature, the seller is entitled to withdraw from the contract. In the case of hindrances of a temporary duration, the delivery or service deadlines are extended or the delivery or service dates are postponed by the period of the hindrance plus a reasonable start-up period. If the customer cannot be expected to accept the delivery or service as a result of the delay, he can withdraw from the contract by means of an immediate written declaration to the seller.
4.4. The seller is only entitled to partial deliveries if
4.4.1. the partial delivery can be used by the customer within the scope of the contractual purpose,
4.4.2. the delivery of the remaining ordered goods is ensured and
4.4.3. the customer does not incur any significant additional work or additional costs as a result (unless the seller agrees to bear these costs).
4.5. If the seller is in default with a delivery or service or if a delivery or service is impossible for him, for whatever reason, the seller’s liability for damages is limited in accordance with the provisions of Section 8 of these General Terms and Conditions of Delivery.
5. Place of Performance, Dispatch, Packaging, Passing of Risk, Acceptance
5.1. The place of performance for all obligations arising from the contractual relationship is the seller’s registered office, unless otherwise specified. If the seller also owes the installation, the place of fulfillment is the place where the installation has to take place.
5.2. The mode of dispatch and the packaging are subject to the dutiful discretion of the seller.
5.3. If shipping of the goods has been agreed and the seller has not taken on the transport or installation, the risk passes to the delivery item at the latest when the delivery item is handed over (whereby the start of the loading process is decisive) to the forwarding agent, carrier or other third party responsible for carrying out the shipment client about. If the dispatch or handover is delayed as a result of a circumstance caused by the customer, the risk passes to the customer on the day on which the delivery item is ready for dispatch and the seller has notified the customer of this.
5.4. The client bears storage costs after the transfer of risk. In the case of storage by the seller, the storage costs are (0.25)% of the invoice amount for the delivery items to be stored for each completed week. We reserve the right to assert and provide evidence of additional or lower storage costs.
5.5. The shipment will only be insured by the seller against theft, breakage, transport, fire and water damage or other insurable risks at the express request of the customer and at his expense.
5.6. Insofar as an acceptance has to take place, the purchased item is deemed to have been accepted if
5.6.1. the delivery and, if the seller is also responsible for the installation, the installation has been completed,
5.6.2. the seller has informed the client of this with reference to the acceptance fiction according to this clause 5.6 and has requested him to accept,
5.6.3. 14 working days have passed since the delivery or installation or the client or his customer has started using the purchased item (e.g. put the delivered system into operation) and in this case 7 working days have passed since delivery or installation and
5.6.4. the customer has failed to accept the goods within this period for a reason other than a defect reported to the seller which makes use of the purchased item impossible or significantly impairs it.
6. Warranty, Material Defects
6.1. The warranty period is two years from delivery or, if acceptance is required, from acceptance. This period does not apply to claims for damages by the customer resulting from injury to life, limb or health or from intentional or grossly negligent breaches of duty by the seller or his vicarious agents, which are time-barred in accordance with the statutory provisions.
6.2. The delivered items must be carefully inspected immediately after delivery to the customer or to a third party designated by him. With regard to obvious defects or other defects that would have been recognizable in an immediate, careful examination, they are deemed to have been approved by the buyer if the seller does not receive a written notice of defects within (seven) working days after delivery. With regard to other defects, the delivery items are deemed to have been approved by the buyer if the notice of defects is not received by the seller within (seven) working days after the point in time at which the defect became apparent; if the defect was already evident at an earlier point in time during normal use, this earlier point in time is decisive for the beginning of the complaint period. At the request of the seller, a delivery item that has been the subject of a complaint must be returned to the seller carriage paid. If the notice of defects is justified, the seller will reimburse the costs of the cheapest shipping route; this does not apply if the costs increase because the delivery item is located at a location other than the place of intended use.
6.3. In the event of material defects in the delivered items, the seller is initially obliged and entitled to choose between repairs or a replacement delivery within a reasonable period of time. In the event of failure, ie impossibility, unreasonableness, refusal or unreasonable delay in rectification or replacement delivery, the customer can withdraw from the contract or reduce the purchase price appropriately.
6.4. If a defect is due to the fault of the seller, the customer can demand compensation under the conditions specified in Section 8.
6.5. In the case of defects in components from other manufacturers, which the seller cannot remedy for licensing or factual reasons, the seller will, at his option, assert his warranty claims against the manufacturers and suppliers for the account of the customer or assign them to the customer. In the case of such defects, warranty claims against the seller only exist under the other conditions and in accordance with these General Terms and Conditions of Delivery if the judicial enforcement of the aforementioned claims against the manufacturer and supplier was unsuccessful or is futile, e.g. due to insolvency. The statute of limitations for the relevant warranty claims of the customer against the seller is suspended for the duration of the legal dispute.
6.6. The warranty does not apply if the customer changes the delivery item or has it changed by a third party without the consent of the seller and this makes it impossible or unreasonably difficult to remedy the defect. In any case, the customer must bear the additional costs of remedying the defect arising from the change.
6.7. A delivery of used items agreed with the customer in individual cases takes place with the exclusion of any warranty for material defects.
7. Intellectual Property Rights
7.1. In accordance with this clause 7, the seller is responsible for ensuring that the delivery item is free of industrial property rights or copyrights of third parties. Each contractual partner shall inform the other contractual partner immediately in writing if claims are asserted against him due to the infringement of such rights.
7.2. In the event that the delivery item infringes an industrial property right or copyright of a third party, the seller will, at his option and at his own expense, modify or replace the delivery item in such a way that third-party rights are no longer violated, but the delivery item continues to fulfill the contractually agreed functions , or provide the customer with the right of use by concluding a license agreement with the third party. If the seller does not succeed in doing this within a reasonable period of time, the client is entitled to withdraw from the contract or to reduce the purchase price appropriately. Any claims for damages by the client are subject to the restrictions under Section 8 of these General Terms and Conditions of Delivery.
7.3. In the event of infringements of rights by products from other manufacturers supplied by the seller, the seller will, at his option, assert his claims against the manufacturers and sub-suppliers for the account of the customer or assign them to the customer. Claims against the seller in these cases only exist in accordance with this Section 7 if the judicial enforcement of the aforementioned claims against the manufacturer and sub-supplier was unsuccessful or is futile, e.g. due to insolvency.
8. Liability for damages due to negligence
8.1. The liability of the seller for damages, regardless of the legal reason, in particular due to impossibility, delay, defective or incorrect delivery, breach of contract, breach of obligations during contract negotiations and tortious acts, insofar as fault is involved, is in accordance with the provisions under of this clause 8.
8.2. The seller is not liable in the event of simple negligence on the part of its organs, legal representatives, employees or other vicarious agents, unless there is a breach of essential contractual obligations. Essential to the contract are the obligation to deliver and install the delivery item on time, its freedom from defects of title and such material defects that impair its functionality or usability more than insignificantly, as well as duties to provide advice, protection and care, which are intended to enable the customer to use the delivery item in accordance with the contract or to protect the life and limb of the customer’s staff or to protect his property from significant damage.
8.3. Insofar as the seller is liable for damages pursuant to Section 8.2, this liability is limited to damages which the seller foresaw as a possible consequence of a breach of contract when the contract was concluded or which he should have foreseen if he had exercised due diligence. In addition , indirect damage and consequential damage resulting from defects in the delivery item can only be compensated insofar as such damage is typically to be expected when the delivery item is used as intended. The above provisions of this section 8.3 do not apply in the case of intentional or grossly negligent conduct by members of the seller’s bodies or executives.
8.4. In the event of liability for simple negligence, the seller’s obligation to pay compensation for damage to property and the resulting further financial losses is limited to an amount of 50% of the purchase price/service fee of the product or service affected in each case, even if it is a violation of essential contractual obligations .
8.5. The above liability exclusions and limitations apply to the same extent in favor of the organs, legal representatives, employees and other vicarious agents of the seller.
8.6. Insofar as the seller provides technical information or acts in an advisory capacity and this information or advice is not part of the contractually agreed scope of services owed by him, this is done free of charge and to the exclusion of any liability.
8.7. The restrictions under this Section 8 do not apply to the seller’s liability for willful conduct, for guaranteed quality features, for injury to life, limb or health or under the Product Liability Act.
9. Retention of Title
9.1. The retention of title agreed below serves to secure all existing current and future claims of the seller against the buyer from the supply relationship between the contracting parties via robots, in particular for the service area (including balance claims from a current account relationship limited to this supply relationship).
9.2. The goods delivered by the seller to the buyer remain the property of the seller until all secured claims have been paid in full. The goods and the goods covered by the retention of title that take their place in accordance with the following provisions are hereinafter referred to as “reserved goods”.
9.3. The buyer keeps the goods subject to retention of title for the seller free of charge.
9.4. The buyer is entitled to process and sell the goods subject to retention of title in the ordinary course of business until the event of enforcement (section 9.9). Pledges and assignments as security are not permitted.
9.5. If the goods subject to retention of title are processed by the buyer, it is agreed that the processing is carried out in the name and for the account of the seller as the manufacturer and the seller directly owns or – if the processing is carried out from materials from several owners or the value of the processed item is higher than the Value of the reserved goods – acquires co-ownership (fractional ownership) of the newly created item in the ratio of the value of the reserved goods to the value of the newly created item. In the event that no such acquisition of ownership should occur at the seller, the buyer transfers his future ownership or – in the above ratio – co-ownership of the newly created item to the seller as security. If the reserved goods are combined with other items to form a single item or are inseparably mixed and one of the items is to be regarded as the main item, so that the seller or the buyer acquires sole ownership, the party who owns the main item transfers proportionate co-ownership to the other party of the uniform thing in the ratio specified in S. 1.
9.6. In the event of the resale of the reserved goods, the buyer hereby assigns the resulting claim against the purchaser as security – in the case of co-ownership of the seller in the reserved goods pro rata according to the co-ownership share – to the seller. The same applies to other claims that take the place of the reserved goods or otherwise arise with regard to the reserved goods, such as insurance claims or claims from tort in the event of loss or destruction. The seller revocably authorizes the buyer to collect the claims assigned to the seller in his own name. The seller may only revoke this direct debit authorization in the event of realisation.
9.7. If third parties access the goods subject to retention of title, in particular through seizure, the buyer will immediately point out the seller’s ownership and inform the seller about this in order to enable him to enforce his property rights. If the third party is not able to reimburse the seller for the judicial or extrajudicial costs incurred in this connection, the buyer is liable to the seller for this.
9.8. The seller will release the goods subject to retention of title and the items or claims replacing them if their value exceeds the amount of the secured claims by more than 50%. The selection of the items to be released thereafter is up to the seller.
9.9. If the seller withdraws from the contract in the event of breach of contract by the buyer – in particular default in payment – (case of enforcement), he is entitled to demand the return of the goods subject to retention of title.
10. Final Provisions
10.1. If the customer is a merchant, a legal entity under public law or a special fund under public law, or if he does not have a general place of jurisdiction in the Federal Republic of Germany, the place of jurisdiction for any disputes arising from the business relationship between the seller and the customer is the seller’s registered office. The seller can also take legal action against the customer at his place of jurisdiction for any disputes arising from the business relationship. Mandatory legal provisions on exclusive places of jurisdiction remain unaffected by this regulation.
10.2. The relationships between the seller and the customer are exclusively subject to the law of the Federal Republic of Germany. The United Nations Convention on Contracts for the International Sale of Goods dated April 11, 1980 (CISG) does not apply.
10.3. Insofar as the contract or these General Terms and Conditions of Delivery contain loopholes, the legally effective regulations that the contractual partners would have agreed according to the economic objectives of the contract and the purpose of these General Terms and Conditions of Delivery if they had known of the loopholes shall be deemed to have been agreed to fill these loopholes.