1 Scope of application
1.1 All deliveries, services and offers of the Company to merchants, legal entities under public law or special funds under public law shall be made exclusively on the basis of these General Terms and Conditions. These are an integral part of all contracts that the company concludes with its contractual partners (hereinafter also referred to as "clients" or "customers") for the deliveries or services it offers. They shall also apply to all future deliveries, services or offers to the Client, even if they are not separately agreed again.
1.2 Terms and conditions of the Client or third parties shall not apply, even if the Company does not separately object to their validity in individual cases. Even if the company refers to a letter containing or referring to the terms and conditions of the client or a third party, this shall not constitute agreement to the validity of those terms and conditions.
2 Offer and conclusion of contract
2.1 All offers made by the Company are subject to change and non-binding, unless they are expressly labelled as binding or contain a specific acceptance period. The company may accept orders or commissions within fourteen days of receipt.
2.2 Supplements and amendments to the agreements made, including these General Terms and Conditions of Delivery, must be made in writing to be effective. With the exception of managing directors or authorised signatories, the Seller's employees are not entitled to make any verbal agreements deviating from this. Telecommunication, in particular by fax or e-mail, is sufficient to fulfil the written form requirement, provided that a copy of the signed declaration is transmitted.
2.3 Unless otherwise agreed, information provided by the company on the subject matter of the service (e.g. weights, dimensions, utility values, load-bearing capacity, tolerances and technical data) as well as our representations of the same (e.g. drawings and illustrations) are only approximate, unless the usability for the contractually intended purpose requires exact conformity. They are not guaranteed characteristics, but descriptions or labelling 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 insofar as they do not impair the usability for the contractually intended purpose.
2.4 The Company reserves the right to make changes to the design and form of the object of performance during the delivery period, insofar as this does not impair the suitability of the object of performance for the purpose desired by the Customer.
2.5 The company reserves the right of ownership, all copyrights and other industrial property rights to all documents made available to the customer. Without the express consent of the Company, the documents provided may not be used outside the contractual relationship, in particular they may not be reproduced or made accessible to third parties. At the Company's request, the Client shall return all documents provided to it to the Company.
3. inspection or maintenance work, repairs
3.1 Unless otherwise agreed, inspection, maintenance and/or repair services shall be remunerated in accordance with the Company's current price list plus travelling costs and travelling time.
3.2 If repair work cannot be carried out without prior inspection of the system, the Company shall carry out the inspection immediately after confirmation of the order, unless expressly agreed otherwise. The inspection shall be remunerated in accordance with the provisions of Clause 3.1.
3.3 Insofar as the scope of the respective maintenance work/repairs for the subject matter of the contract is not defined by the Client, the Company shall determine the scope of services at its reasonable discretion and taking into account the interests of the Client. If it only becomes apparent during order processing that the repair is impossible due to defects in the subject matter of the contract, the Company shall be entitled to invoice the Client for the work carried out up to this determination. If it only becomes apparent during order processing that (further) repair is uneconomical, the Company shall inform the Client of this immediately in order to bring about a binding decision by the Client on how to proceed. If the client decides to discontinue the order due to inefficiency, the company shall be entitled to remuneration for the work performed up to that point and reimbursement of expenses not included in the remuneration.
3.4 The Company shall not be liable for errors or additional expenses resulting from incorrect documents, drawings, samples or other information provided by the Client.
4 Obligations of the client to co-operate
4.1 The Client shall support the Company to a reasonable extent in all contractual services. In particular, it must provide the Company with all necessary information and documents in good time before the start of the contractual services and ensure access to its facilities, as well as instruct the Company's employees and authorised representatives in the local safety regulations. Insofar as the contractual services can be performed remotely, the Client shall make this possible. The Client shall provide the infrastructure required for the contractual services (e.g. energy, data lines) free of charge. If the client's systems are not operational in whole or in part during the contractual services, this shall not constitute a defect in the contractual service.
4.2 For the installation and assembly of systems, the client must provide the following in good time at its own expense, in particular but not exclusively: a. all earthworks, construction and other ancillary work outside the industry, including the provision of the necessary personnel and building materials; b. the items and materials required for assembly and commissioning, such as scaffolding, lifting equipment and other devices, fuels and lubricants; c. energy and water at the place of use; d. the necessary equipment and materials for the installation and commissioning of the systems. energy and water at the place of use, including all connections, heating and lighting; d. sufficiently large, suitable, dry and lockable rooms at the assembly site for the storage of machine parts, apparatus, materials and tools, etc., as well as suitable working and recreation rooms for the assembly personnel, including sanitary facilities. In addition, the client must take all safety precautions at the assembly site that it would also take for its own material and personnel; e. protective clothing and protective devices that are necessary due to the circumstances at the assembly site and/or due to legal requirements.
4.3 Prior to commencement of the contractual services, the client must provide the necessary information on the location of electricity, gas and water lines or similar installations in the area of the installation site as well as the necessary structural documentation without being requested to do so;
4.4 The necessary preparatory work and provisions of the client must be sufficiently advanced at the start of the contractual services so that the installation/assembly can be started as agreed and carried out without interruptions. Access routes and the installation/assembly site must be levelled and cleared.
4.5 If the contractual services are delayed due to circumstances for which the Company is not responsible, the Client shall bear the reasonable costs caused by the delay, in particular also for waiting time and additional necessary travelling expenses. 4.6 The Client shall certify to the Company in writing on a weekly basis the duration of the working time of the installation personnel as well as the completion of the contractual performance and commissioning of the system.
5 Delivery and delivery deadlines
5.1 Deadlines and dates for deliveries and services promised by the Company shall always be approximate only, unless a fixed deadline or date has been expressly agreed. If despatch has been agreed, delivery periods and delivery dates shall refer to the time of handover to the forwarding agent, carrier or other third party commissioned with the transport.
5.2 The Company may - without prejudice to its rights arising from default on the part of the Client - demand from the Client an extension of delivery and performance deadlines or a postponement of delivery and performance dates by the period in which the Client fails to fulfil its contractual obligations towards the Company.
5.3 The Company shall not be liable for impossibility of delivery or for delays in delivery insofar as these are caused by force majeure or other events unforeseeable at the time of conclusion of the contract (e.g. operational disruptions of any kind, difficulties in the supply chain). disruption of operations of any kind, difficulties in procuring materials or energy, transport delays, strikes, lawful lockouts, shortages of labour, energy or raw materials, difficulties in obtaining necessary official permits, official measures or the failure of suppliers to deliver or to deliver correctly or on time) for which the Company is not responsible. If such events make delivery or performance significantly more difficult or impossible for the Company and the hindrance is not only of a temporary nature, the Company shall be entitled to withdraw from the contract. In the event of hindrances of a temporary nature, the delivery or performance periods shall be extended or the delivery or performance dates postponed by the period of the hindrance plus a reasonable start-up period. If the client cannot reasonably be expected to accept the delivery or service as a result of the delay, he may withdraw from the contract by immediate written declaration to the company.
5.4 If the Company is in default with a delivery or service or if a delivery or service becomes impossible for whatever reason, the Company's liability for damages shall be limited in accordance with § 9 of these General Terms and Conditions.
6 Place of fulfilment, dispatch, transfer of risk
6.1 Unless otherwise agreed, the place of fulfilment for all obligations arising from the contractual relationship shall be the registered office of the Company. If the Company is also responsible for installation/assembly, the place of fulfilment shall be the place where this service is to be performed as agreed.
6.2 The type of dispatch and packaging are subject to the dutiful discretion of the Company.
6.3 The risk shall pass to the Customer at the latest when the delivery item is handed over (whereby the start of the loading process shall be decisive) to the forwarding agent, carrier or other third party appointed to carry out the shipment. This shall also apply if partial deliveries are made or if the Company has assumed other services (e.g. dispatch or installation). If dispatch or handover is delayed due to a circumstance for which the Client is responsible, the risk shall pass to the Client from the day on which the delivery item is ready for dispatch and the Company has notified the Client of this.
6.4 Storage costs after the transfer of risk shall be borne by the Client.
6.5 A consignment shall only be insured by the Company against theft, breakage, transport, fire and water damage or other insurable risks at the express request of the Client and at the Client's expense.
7 Prices and terms of payment
7.1 Prices apply to the scope of services and deliveries listed in the order confirmations. Additional or special services shall be invoiced separately. Prices are quoted in EURO ex works plus packaging, statutory VAT, customs duties in the case of export deliveries as well as fees and other public charges.
7.2 Insofar as the Company accepts (old) parts in payment, the price offered by the Company for this shall only apply subject to the condition that these parts can be repaired.
7.3 If the agreed prices are based on the Company's list prices and delivery is to take place more than four months after conclusion of the contract, the Company's list prices valid at the time of delivery shall apply.
7.4 The Company may reasonably increase the prices offered if the Company's production costs (in particular material and labour costs) have increased in an unforeseeable and unavoidable manner between conclusion of the contract and delivery/service. In this case, the company shall inform the customer immediately after becoming aware of the price increase. The customer is entitled to withdraw from the contract within a period of two weeks after this information, insofar as the contractual service has not yet been rendered.
7.5 The Company shall be entitled to execute or render outstanding deliveries or services only against reasonable advance payment or provision of security; this shall be permissible in particular in the case of orders involving extensive material expenditure or long-term contractual services and if the Company becomes aware of circumstances which are likely to significantly reduce the creditworthiness of the Client and which jeopardise the payment of the Company's outstanding claims by the Client arising from the respective contractual relationship (including from other individual orders to which the same framework agreement applies).
7.6 Invoice amounts are to be paid by the client within 14 days without any deductions, unless otherwise agreed in writing. The date of receipt by the Company shall be decisive for the date of payment. Cheques shall not be deemed to be payment until they have been cashed. If the Client fails to pay by the due date, interest shall be charged on the outstanding amounts from the due date in accordance with the statutory provisions; the right to claim higher interest and further damages in the event of default shall remain unaffected.
7.7 The Client is only authorised to assign claims arising from contracts with the Company with the prior written consent of the Company. General Terms and Conditions MT Energy Service GmbH ▪ D-27404 Zeven Version: 06/2019 Page 2 of 2 7.8 Unless expressly agreed otherwise, cash discounts from the invoice amount are not permitted. Cheques and bills of exchange from the Client shall only be accepted by the Company by prior agreement - on account of payment - subject to timely and proper crediting. Any collection and discount charges incurred shall be borne by the Client.
8 Warranty
8.1 The warranty period shall be one year from delivery or, if acceptance is required, from acceptance. This shall not apply insofar as the law prescribes longer periods in accordance with §§ 428 I No. 2 (buildings), 479 I (right of recourse) and 634a I No. 2 BGB (construction defects). The limitation period for reconditioned / used parts is 3 months.
8.2 The delivered items must be carefully inspected immediately after delivery to the client or to the third party designated by the client. With regard to obvious defects or other defects that would have been recognisable during an immediate, careful inspection, they shall be deemed to have been approved by the Client if the Company does not receive a written notice of defects within seven working days of delivery. With regard to other defects, the delivery items shall be deemed to have been approved by the Client if the Company does not receive the notice of defects within seven working days of the time at which the defect became apparent; however, if the defect was already recognisable to the Client at an earlier time during normal use, this earlier time shall be decisive for the start of the period for giving notice of defects. At the request of the Client, a rejected delivery item shall be returned to the Company carriage paid. In the event of a justified complaint, the Company shall reimburse the Seller for the costs of the most favourable shipping route; this shall not apply if the costs increase because the delivery item is located at a place other than the place of intended use.
8.3 In the event of defects in components from other manufacturers which the Company is unable to rectify for licence or factual reasons, the Company shall, at its discretion, assert its warranty claims against the manufacturers and suppliers for the account of the Client or assign them to the Client. Warranty claims against the Company for such defects shall only exist under the other conditions and in accordance with these General Terms and Conditions if the legal enforcement of the aforementioned claims against the manufacturer and supplier was unsuccessful or is futile, for example due to insolvency. For the duration of the legal dispute, the limitation period for the Client's relevant warranty claims against the Contractor shall be suspended.
8.4 The warranty shall lapse if the Client modifies the delivery item or has it modified by a third party without the Company's consent and this makes it impossible or unreasonably difficult to remedy the defect. In any case, the Client shall bear the additional costs of remedying the defect resulting from the modification.
8.5 The client shall only have statutory rights of recourse insofar as it has not made any agreements with its customer that go beyond the statutory warranty claims and rights.
8.6 Any delivery of used items by the Company agreed with the Client shall be made to the exclusion of any warranty for material defects.
9 Compensation for damages
9.1 The Company's liability for damages, irrespective of the legal grounds, in particular due to impossibility, delay, defective or incorrect delivery, breach of contract, breach of obligations during contract negotiations and unauthorised action, shall be limited in accordance with this Clause 9, insofar as fault is involved in each case.
9.2 The company shall not be liable in the event of simple negligence on the part of its bodies, legal representatives, employees or other vicarious agents, unless it is a breach of material contractual obligations. Material contractual obligations are the obligation to deliver and install the delivery item on time, its freedom from defects that impair its functionality or usability more than just insignificantly, as well as consulting, protection and care obligations that are intended to enable the client to use the delivery item in accordance with the contract or to protect the life and limb of the client's personnel or to protect the client's property from significant damage.
9.3 Insofar as the company pursuant to Clause 7. 2 is liable for damages on the merits, this liability shall be limited to damages which the company foresaw as a possible consequence of a breach of contract when the contract was concluded or which it should have foreseen if it had exercised due care. Indirect damage and consequential damage resulting from defects in the delivery item are also only eligible for compensation if such damage is typically to be expected when the delivery item is used as intended.
9.4 In the event of liability for simple negligence, the Company's obligation to pay compensation for damage to property and resulting further financial losses shall be limited to an amount of 10 million EURO (in words: ten million EURO) per claim, in the case of damage resulting from defective planning services to EUR 500,000.00 (in words: five hundred thousand EURO) per claim, even if it is a breach of material contractual obligations.
9.5 The above exclusions and limitations of liability shall apply to the same extent in favour of the bodies, legal representatives, employees and other vicarious agents of the company.
9.6 Insofar as the company 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 the company, this is done free of charge and to the exclusion of any liability.
9.7 The above limitations of liability shall not apply to the Company's liability for intentional behaviour, for guaranteed characteristics, for injury to life, limb or health or under the Product Liability Act.
9.8 Insofar as the liability of the company is limited above, claims against the company shall become time-barred within 12 months. This also applies to claims for defects for which the company is not responsible, unless they concern buildings or a delivery item that was used for a building in accordance with its normal use and caused its defectiveness. In all other respects, the statutory limitation periods shall apply. Acts of subsequent fulfilment shall not trigger a new limitation period.
10 Retention of title
10.1 The retention of title agreed below serves to secure all existing current and future claims of the company against the client arising from the supply relationship existing between the contracting parties, including balance claims from a current account relationship limited to this supply relationship.
10.2 The goods delivered by the company to the customer shall remain the property of the company until all secured claims have been paid in full.
10.3 The Customer shall be entitled to process and sell the goods subject to retention of title in the ordinary course of business until the realisation event (Clause 10.8) occurs. Pledges and transfers by way of security to third parties are not permitted.
10.4 If the reserved goods are processed by the customer, it is agreed that the processing is carried out in the name and for the account of the company as manufacturer and that the company directly acquires ownership or - if the processing is carried out from materials of several owners or the value of the processed item is higher than the value of the reserved goods - 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 for the Company, the Customer hereby transfers its future ownership or - in the above-mentioned ratio - co-ownership of the newly created item to the Company as security. If the reserved goods are combined or inseparably mixed with other items to form a uniform item and if one of the other items is to be regarded as the main item, the Customer shall transfer to the Company the co-ownership of the uniform item in the proportion specified in sentence 1, insofar as the main item belongs to the Customer.
10.5 In the event of resale of the reserved goods, the customer hereby assigns to the company by way of security the resulting claim against the purchaser - in the case of co-ownership of the company in the reserved goods in proportion to the co-ownership share. 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 arising from unauthorised action in the event of loss or destruction. The company revocably authorises the customer to collect the claims assigned to the company in its own name. The company may only revoke this direct debit authorisation in the event of realisation.
10. 6 If third parties seize the reserved goods, in particular by attachment, the customer shall immediately inform them of the Company's ownership and inform the Company thereof in order to enable the Company to enforce its ownership rights. If the third party is not in a position to reimburse the Company for the judicial or extrajudicial costs incurred in this connection, the Customer shall be liable to the Company for such costs.
10.7 The Company shall 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 25 %. The selection of the items to be released thereafter lies with the Company.
10.8 The assertion of the retention of title or a resulting demand for return by the Company shall only be deemed a cancellation of the contract if the Company expressly declares this
11. miscellaneous
11.1 If the Client is a merchant, a legal entity under public law or a special fund under public law, or if it has no general place of jurisdiction in the Federal Republic of Germany, the place of jurisdiction for any disputes arising from the business relationship between the Company and the Client shall be, at the Company's discretion, the Company's registered office or the Client's registered office. In such cases, however, the company's registered office shall be the exclusive place of jurisdiction for legal action against the company. Mandatory statutory provisions on exclusive places of jurisdiction shall remain unaffected by this provision.
11.2 The legal relationship between the Company and the Client shall be governed exclusively by the laws of the Federal Republic of Germany, excluding the UN Convention on Contracts for the International Sale of Goods.
MT Energy Service GmbH (MTES)
Ludwig-Elsbett-Str. 1
D-27404 Zeven