General Terms and Conditions Sanicus GmbH

Status: 06 July 2023

1. Scope

1.1 The following terms and conditions (T&Cs) apply exclusively to our business relationship with our customers, including the provision of information and advice. Once our T&Cs have been incorporated into a transaction with a customer, they shall also apply to all subsequent business dealings between the customer and us, unless otherwise agreed in writing. The customer’s terms and conditions shall apply only if and to the extent that we expressly acknowledge them in writing. In particular, our silence regarding such deviating terms and conditions shall not be deemed to constitute acknowledgement or consent, not even in respect of future contracts. Our terms and conditions shall take precedence over any of the customer’s terms and conditions of purchase, even if, under the latter, acceptance of the order is deemed to constitute unconditional acceptance of the terms and conditions of purchase, or if we make delivery after the customer has drawn our attention to the applicability of their general terms and conditions of purchase, unless we have expressly waived the applicability of our General Terms and Conditions. By accepting our order confirmation, the customer expressly acknowledges that they waive any legal objection derived from their terms and conditions of purchase.

2. Information, advice and product features

2.1 Information and explanations regarding our products are provided solely on the basis of our past experience. Values stated here are to be considered average values. All information about our products, especially illustrations, drawings, measurement and performance data, as well as other technical information contained in our offers and publications, are to be regarded as approximate average values. Characteristic data, even those not marked with tolerances, as found in catalogues and/or operating instructions, as well as advice and tips from our employees, are subject to industry-standard deviations and changes due to technical developments. Our application instructions are drafted with industry-standard care, but do not exempt our customers from the obligation to test the products for the purpose intended by them.

2.2. We only undertake a duty of care if there is a written consultancy agreement.

2.3 References to standards, similar technical regulations, and technical details, descriptions, and illustrations of the subject matter of the order in offers, brochures, and our advertising shall only constitute a declaration of an attribute of our products if we have expressly declared the characteristic as an „attribute“ of the products; otherwise, they shall be considered non-binding general performance descriptions.

2.4 A guarantee is only considered to have been assumed by us if we have expressly warranted a property in writing.

3. Probe specimens; models

The properties of custom-made samples or models only become part of the contract if this has been expressly agreed in writing.

4. Conclusion of Contract, Scope of Delivery, Acceptance

4.1 Our offers are non-binding unless they are marked as binding or contain binding commitments. They are invitations to place orders. A contract is only concluded – even in ongoing business relations – when we confirm the customer's order in writing (including by fax or email). Our order confirmation is decisive for the content of the supply contract. In the case of immediate delivery, our order confirmation may be replaced by our invoice.

4.2 All agreements, collateral agreements, assurances and contract amendments must be in writing. This also applies to the waiver of the written form requirement itself. Oral contract amendments or additions are void.

4.3 In the case of call-off orders or customer-induced delays in acceptance, we are entitled to procure the material for the entire order and produce the entire order quantity immediately. Consequently, any change requests from the customer cannot be taken into account after the order has been placed, unless this has been expressly agreed.

4.4 The customer must inform us in writing of any special requirements for our products in good time before the contract is concluded.

4.5 We are entitled to make deliveries that exceed or fall short of the order quantity by up to 5% in terms of number of items or weight. 

4.6 For orders with a net value below EURO 200.00, we will charge a processing fee of EURO 20.00 plus VAT.

4.7 If acceptance of the products or dispatch is delayed for a reason attributable to the customer, we shall be entitled, after setting and upon expiry of a 14-day grace period, at our discretion, to demand immediate payment of the purchase price, to withdraw from the contract, or to refuse performance and claim damages in lieu of the entire performance. The setting of the grace period must be in writing. We are not required to refer to the rights under this clause again in this context. In the event of a claim for damages, the damages payable shall amount to at least 10 % of the net delivery price. Both parties reserve the right to prove that the amount of damage is different or that no damage has been incurred.

4.8 If the delivery order or call-off is delayed by the customer, we are entitled to postpone the delivery by the same period of the customer's delay plus a reasonable scheduling period.

5. Delivery, Delivery Time, Late Delivery, Returns

5.1 Binding delivery dates and deadlines must be agreed in writing. For non-binding or approximate (approx., about, etc.) delivery dates and deadlines, we will endeavour to adhere to them to the best of our ability.

5.2 Delivery times commence upon receipt of our order confirmation by the customer, but not before all details of the order execution have been clarified and all other prerequisites to be fulfilled by the customer are met, in particular, agreed down payments have been fully made; the same applies to delivery dates. If the customer requests changes after placing the order, a new delivery period shall commence upon our confirmation of the change. 

5.3 Deliveries prior to the expiry of the delivery period are permissible. In the case of hollow debts, the day of notification of readiness for dispatch is considered the delivery day; otherwise, it is the day the products are dispatched. We are entitled to make partial deliveries. In the absence of any other written agreement, interest in our performance shall only cease to exist if we fail to deliver essential parts or deliver them late. Unless otherwise agreed, delivery shall be made – in the case of long-term contracts with call-offs as well as individual contracts – within the agreed delivery period at our discretion. We may offer the goods on the first working day after conclusion of the contract and at any time within the delivery period during the customer's usual business hours.

5.4 If we are in default of delivery, the customer must first grant us a reasonable grace period of at least 7 days for performance, unless unreasonable. If this period expires without success, claims for damages due to breach of duty – for whatever reason – shall only exist in accordance with the provisions of clause 11. 

5.5 We shall not be in default as long as the customer is in default with the performance of obligations owed to us, including those from other contracts. 

6. Reservation of self-supply; force majeure and other impediments

6.1 If, for reasons for which we are not responsible, we do not receive delivery or performance from our subcontractors properly or on time, despite having made proper arrangements, or if force majeure events occur, we will inform our customers in writing in good time. In this case, we are entitled to postpone the delivery for the duration of the hindrance, or to withdraw from the contract in whole or in part with regard to the unfulfilled portion, provided that we have fulfilled our aforementioned duty to inform and have not assumed the procurement risk. Force majeure equivalents include strikes, lockouts, official interventions, energy and raw material shortages, unintentional transport bottlenecks, unintentional operational disruptions, for example, due to fire, water, and machine damage, and all other disruptions that, from an objective perspective, have not been caused by us through fault. 

6.2 If a binding delivery date or delivery period has been agreed, and this agreed delivery date or delivery period is exceeded due to events after 6.1, the Customer is entitled to withdraw from the contract in respect of the part not yet fulfilled, if an appropriate grace period expires without result and continued adherence to the contract is objectively unreasonable for the Customer. Further claims by the Customer, in particular claims for damages, are excluded in this case. 

7. Dispatch and transfer of risk

7.1 Unless otherwise agreed in writing, despatch will be uninsured by us and, in the case of delivery to the place of departure and the place of destination, at the customer's risk and expense. The choice of transport route and means of transport shall remain with us. 

7.2 The risk of accidental loss or accidental deterioration shall pass to the customer upon handover of the products to be delivered to the customer, the forwarding agent, the carrier or any other company designated to carry out the shipment, but at the latest upon leaving our factory, warehouse or office, unless a delivery obligation (Bringschuld) has been agreed. 

7.3 If the shipment is delayed because we exercise our right of retention due to the customer's complete or partial payment default, or for any other reason attributable to the customer, the risk shall pass to the customer no later than the date of notification of readiness for shipment. 

8. Breach of Duty/Warranty

Recognisable defects must be notified to us in writing by the customer without delay, but no later than 12 days after the provision of services – also in respect of any part of the services usable by the customer. Hidden defects must be notified to us in writing without delay after discovery, but no later than within the warranty period according to clause 8.6. A notification that does not comply with the time limit or form requirements shall exclude any claim by the customer for breach of duty due to poor performance. 

8.2 Defects recognisable upon delivery must also be complained about to the carrier and the recording of the defects must be arranged by them. Claims for defects must contain a description of the defect that is as detailed as possible. A claim that is not made in due time or in the prescribed form excludes any claim by the customer for breach of duty due to poor performance. Insofar as defects in quantity and weight were already recognisable upon delivery according to the aforesaid inspection obligations, the customer must complain about these defects to the carrier upon receipt of the products and have the complaint certified. A claim that is not made in due time or in the prescribed form also excludes any claim by the customer for breach of duty due to poor performance in this respect. 

8.3 Other breaches of duty must be formally warned against in writing by the customer, allowing a reasonable period for remedy, before any further rights are asserted. 

8.4 If a defect exists, we will remedy it, at our discretion – with the exception of the case of supplier recourse pursuant to §§ 478, 479 BGB – by free repair or replacement delivery. Defects for which the customer is responsible and unjustified complaints will be rectified by us, on behalf and at the expense of the customer, provided the customer is a merchant. 

8.5 To the extent that the breach of duty does not exceptionally relate to a work performance on our part, withdrawal shall be excluded if our breach of duty is insignificant. 

8.6 For demonstrable material, manufacturing or construction defects, we provide a warranty for a period of one year, calculated from the day of the statutory limitation period, unless otherwise expressly agreed or if § 478 BGB (recourse claim) applies. This does not apply to claims for damages due to injury to body, life or health, wilful or fraudulent conduct. 

Our warranty is void if the serial number on the item purchased is removed by the buyer. 

8.8 If the customer or a third party improperly modifies the goods, we shall not be liable for the resulting consequences. The same applies to alterations to the goods made without our prior consent. 

8.9 Customer claims for damages or consequential damages due to or in connection with defects, for whatever reason, shall only exist in accordance with the provisions of clause 11, unless these are claims for damages arising from a guarantee intended to protect the customer against the risk of any defects. Even in this case, however, we shall only be liable for typical and foreseeable damage. 

8.10 Our warranty and resulting liability are excluded to the extent that defects and related damage are not demonstrably attributable to faulty material, faulty design or faulty workmanship, or faulty assembly instructions. In particular, the warranty and resulting liability are excluded for the consequences of incorrect use (especially in the case of assembly that does not comply with the state of the art or assembly contrary to the assembly instructions), failure to perform the required maintenance, or normal wear and tear of the products, excessive use or unsuitable operating equipment, adverse location and/or environmental conditions, as well as, for example, the consequences of chemical, electromagnetic, mechanical or electrolytic influences that do not correspond to the intended, average standard influences. 

8.11 We do not warrant parts that wear out through normal use of the products and/or must be regularly replaced by the customer to maintain proper function, or are subject to consumption or wear and tear, as well as consumables with a limited and expired best-before date, insofar as the malfunction is due to wear and tear. 

8.12 There shall be no claims for defects in the case of only an insignificant deviation from the agreed or usual quality or usability. 

AGeneral Terms and Conditions of Sale and Delivery of RST Gesellschaft für Wasserspartechnik mbH (for Business Customers) 

8.13 The acknowledgement of breaches of duty, particularly in the form of material defects, must always be in writing. 

9. Prices, Payment Terms, Plea of Uncertainty

9.1 All prices are generally quoted in Euros, excluding packaging, freight, and any surcharges for small quantities, ex-works or warehouse, plus VAT to be borne by the customer at the statutory rate applicable at the time. 

9.2 Services that are not part of the agreed scope of delivery shall, in the absence of any deviating agreement, be performed on the basis of our then-current general price lists. 

9.3 We are entitled to reasonably increase the remuneration unilaterally (§ 315 BGB) in the event of an increase in material procurement costs, wage and ancillary wage costs, as well as energy costs, and costs due to environmental regulations, if more than four months lie between the conclusion of the contract and delivery. An increase in the aforementioned sense is excluded insofar as the cost increase in the mentioned factors is offset by a cost reduction in other of the mentioned factors with regard to the overall cost burden for the delivery. 

Our invoices are payable 14 days after delivery of the goods, without any deduction. 

9.5 The customer shall be in default of payment within 22 days of delivery, even without a reminder. 

9.6 Once payment is in arrears, interest on arrears shall be charged at a rate of 8 % above the relevant base rate. The date of payment shall be deemed to be the date on which we receive the funds or the date on which the amount is credited to our account. We reserve the right to claim further damages. Default by the customer shall result in all payment claims arising from the business relationship with the customer becoming due immediately. In this case, all the customer’s liabilities to us shall become due for payment without delay, irrespective of any deferral agreements, the term of bills of exchange or instalment payment arrangements. 

9.7 If payment terms are not met, or if circumstances become known or recognisable which, in our reasonable commercial judgment, give rise to justified doubts about the customer's creditworthiness, including facts which already existed at the time of contract conclusion but were not known or could not have been known to us, then, without prejudice to further statutory rights, we shall be entitled in such cases to cease further work on ongoing orders or deliveries and to demand advance payment or the provision of collateral acceptable to us for outstanding deliveries and, after the unsuccessful expiry of a reasonable grace period for performance of such collateral – without prejudice to further statutory rights – to withdraw from the contract. The customer is obliged to compensate us for all damages arising from the non-fulfilment of the contract. 

9.8 The customer's right to retain or set off claims shall only exist in respect of counterclaims that are undisputed or legally established, unless the counterclaim is based on a breach of essential contractual obligations on our part. 

9.9 A right of retention may only be exercised by the customer if their counterclaim arises from the same contractual relationship. 

9.10 We only accept proffered bills of exchange in exceptional cases, by express agreement and for the purpose of fulfillment only. We charge discount expenses from the invoice due date until the bill's expiry date, as well as bill charges. The customer shall bear interest and costs for the discounting or collection of bills of exchange. The day of redemption shall be considered the date of payment for bills of exchange and cheques. In the event that our house bank refuses to discount the bill of exchange, or if there are reasonable doubts that the bill of exchange will be discounted during its term, we are entitled to demand immediate cash payment by taking back the bill of exchange. 

10. Retention of title/Lien

10.1 We reserve title to all equipment and goods supplied by us (hereinafter collectively referred to as „Retained Goods“) until all our claims arising from the business relationship with the customer, including future claims from subsequently concluded contracts, have been settled. This also applies to a balance in our favour if individual or all claims are included by us in a current account (current account) and the balance is drawn. 

10.2 The customer shall adequately insure the reserved goods, in particular against fire and theft. Claims against the insurance in the event of damage to the reserved goods are hereby assigned to us to the extent of the value of the reserved goods. 

10.3 The customer is entitled to resell the delivered products in the ordinary course of business. Other disposals, in particular pledges or the granting of retention of title, are not permitted. If the reserved goods are not paid for immediately upon resale by the third-party purchaser, the customer is obliged to resell only under retention of title. The authorisation to resell the reserved goods shall lapse automatically if the customer ceases payments or defaults on payment to us. 

10.4 The customer hereby assigns to us all claims, including securities and ancillary rights, that accrue against the end customer or third parties in connection with or as a result of the resale of goods subject to retention of title. The customer may not enter into any agreement with their customers that excludes or impairs our rights in any way or invalidates the assignment of the claim in advance. In the event of the resale of goods subject to retention of title together with other items, the claim against the third-party customer shall be deemed assigned to the extent of the agreed delivery price between us and the customer, provided that the amounts attributable to the individual goods cannot be determined from the invoice. 

10.5 The customer shall remain entitled, until our revocation at any time, to the assignment of claims to us. At our request, they are obliged to provide us with the information and documents required for the collection of assigned claims and, if we do not do so ourselves, to immediately inform their customers of the assignment to us. 

10.6 If the customer includes claims from the resale of goods subject to retention of title in a current account relationship with their customers, they hereby assign to us any acknowledged final balance in their favour, up to the amount corresponding to the total amount of the claims from the resale of our goods subject to retention of title that have been included in the current account relationship. 

10.7 If the customer has already assigned claims arising from the resale of products supplied or to be supplied by us to third parties, particularly in the case of true or non-true factoring, or has concluded other agreements that could impair our current or future security rights in accordance with clause 10, they must inform us immediately. In the case of non-true factoring, we are entitled to withdraw from the contract and demand the return of products already delivered; the same applies in the case of true factoring if the customer, according to the contract with the factor, cannot freely dispose of the purchase price of the claim. 

10.8 In the event of a breach of contract, particularly in the event of default in payment, we shall be entitled to repossess all reserved goods without prior withdrawal from the contract; in this case, the customer shall be obliged to hand them over without further ado. For the purpose of determining the stock of goods delivered by us, we may enter the customer's business premises at any time during normal business hours. The repossession of reserved goods shall only constitute withdrawal from the contract if we expressly declare this in writing or if mandatory statutory provisions so require. The customer must inform us immediately in writing of any access by third parties to reserved goods or claims assigned to us. 

10.9 If the value of the security held by us in accordance with the above provisions exceeds the total value of the secured claims by more than 10 %, we shall, at the customer’s request, be obliged to release security of our choice to that extent. 

11. Exclusion and Limitation of Liability

11.1 We shall not be liable, particularly not for the customer's claims for damages, for whatever legal reason, especially for breach of contract or tort. This shall not apply where liability is mandatory by law, particularly: 

• for our own wilful or grossly negligent breach of duty and wilful or grossly negligent breach of duty by legal representatives or vicarious agents;

• for the breach of essential contractual obligations (and in the case of culpable impossibility and significant breach of duty;

• if, in the event of a breach of other duties within the meaning of § 241 (2) of the German Civil Code (BGB), the customer can no longer be expected to accept our performance; 

in the event of damage to life, body and health, including by legal representatives or vicarious agents;

• in the event of default, where a fixed date was agreed; 

• insofar as we have assumed a guarantee for the quality of our goods, or the existence of a performance outcome, or a procurement risk, as well as in the case of liability under the Product Liability Act. “Essential contractual obligations" are those obligations that protect the customer's legally essential positions, which the contract is intended to grant him by virtue of its content and purpose; furthermore, essential are those contractual obligations the fulfilment of which is essential for the proper performance of the contract and the observance of which the customer has regularly relied and may rely on. 

11.2 In other cases, we shall not be liable for any claims for damages or compensation for expenses brought against us arising from the present contractual relationship due to culpable breach of duty, regardless of the legal ground, in cases of slight negligence. 

11.3 In the event of the aforementioned liability under section 11.2 and liability without fault, particularly in cases of initial impossibility and defects in title, we shall only be liable for typical and foreseeable damage. 

11.4 Liability for indirect damages and consequential damages is excluded, unless we have breached a material contractual obligation or we, our senior employees or vicarious agents are guilty of intentional or grossly negligent breach of duty, or a case of injury to body, life or health is involved. 

11.5 Our liability, with the exception of intentional acts and injury to life, limb or health and other statutorily mandatory, deviating liability amounts, is limited overall to the cover provided by our commercial general liability insurance. The sum insured for personal injury, property damage and financial loss currently amounts to: EUR 2,500,000.00. At the customer's request, we will provide them with a free copy of our relevant insurance policy at any time. In the event that the insurer is not liable (e.g. due to our breach of duty, annual maximums, etc.), we undertake to be liable to the customer with our own funds, but with the exception of intentional acts, injury to life, limb or health, and statutorily mandatory, deviating liability amounts, we will only be liable up to a maximum sum of EUR 100,000.00. Any further liability is excluded. 

11.6 The disclaimers or limitations of liability in accordance with clauses 11.2 to 11.5 above shall apply to the same extent in favour of executive and non-executive employees and other vicarious agents as well as our subcontractors. 

11.7 No reversal of the burden of proof is associated with the foregoing provisions. 

12. Place of performance; place of jurisdiction; applicable law

12.1 The place of performance for all contractual obligations is our company's registered office. The exclusive place of jurisdiction for all disputes shall be – insofar as legally permissible – the court responsible for our company's registered office. However, we are also entitled to sue the customer at their general place of jurisdiction. 

12.2 All legal relationships between the customer and us shall be governed exclusively by the law of the Federal Republic of Germany, with the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG) in particular. 

13. Opening of insolvency proceedings/Salvatorius clause

13.1 An application to open insolvency proceedings by the customer or their cessation of payments not based on rights of retention or other rights shall entitle us to withdraw from the contract at any time or to make the delivery of the purchased item dependent on the prior fulfilment of the payment obligation. If delivery of the purchased item has already occurred, the purchase price shall become immediately due in the aforementioned cases. We are also entitled to reclaim the purchased item in the aforementioned cases and to withhold it until full payment of the purchase price. 

13.2 Should a present or future provision of this Agreement be or become wholly or partially ineffective, void, or unenforceable for reasons other than those set out in Sections 305-310 of the German Civil Code (BGB), the validity of the remaining provisions of this Agreement shall not be affected. The same shall apply if, after the conclusion of the Agreement, a gap requiring supplementation arises. The parties shall replace the ineffective, void, or unenforceable provision or the gap requiring supplementation with an effective provision that, in its legal and economic content, corresponds to the ineffective, void, or unenforceable provision and the overall purpose of the Agreement. 

HInstruction 

In accordance with the provisions of the Federal Data Protection Act, we would like to point out that our bookkeeping is managed by an EDP system and that, in this context, we also store data obtained from our business relationship with the customer.