General Terms and Conditions (German abbreviation: AGB)
§ 1 General scope
(1) The following General Terms and Conditions are a part of all contracts with windexperts Prüfgesellschaft mbH, Überseetor 14, 28217 Bremen, hereinafter referred to as Contractor. Customers within the meaning of these General Terms and Conditions are contractual partners of the Contractors. These General Terms and Conditions shall apply equally both to activities of self-employed experts (freelancers and companies), which act by order of the Contractor, hereinafter referred to as network. The Contractor shall test wind turbines together with technical secondary plants (transformer stations, feeding stations etc.), infrastructure (access routes, crane parking area etc.) as well as their technical documentation according to the stipulations of the Customer.
(2) The Contractor shall provide services exclusively based on the following General Terms and Conditions and reserves the right to change or supplement the General Terms and Conditions.
(3)The Contractor is entitled, within the scope of the fulfilment of the contract to have services carried out by its network partners or further commissioned third party companies.
(4) Network partners of the Customer are
- energie profile Ingenieurbüro Glocker, Memmingen
- TmZ Gerster, Meyenburg
- Sachverständigenbüro [experts office] Martin Veltrup, Edewecht
- Windenergie Arndt, Broderstorf
§ 2 Service
(1) The scope of the tasks and activities of the Contractor are oriented to the reached agreements. The Contractor reserves the right to request additional tests and proof of quality, if it considers this necessary in order to fulfil its tasks. The issue of test certificates as well as the marking of the tested objects or plants can be refused if the inspections or tests show that the tested objects or plants do not fulfil the prerequisites required from them or conditions were not taken into consideration.
(2) As a rule, the services of the Contractor shall include recurring tests, for the commissioning as of the end of contractual warranties, within the scope of court expert’s opinions or with intended further operation after 20 years.
(3) The orders will be carried out neutrally according to the generally valid professional rules and to the best of knowledge and belief. For the used sets of rules or the standards upon which the tests are based reference is made to the website of the Contractor www.windexperts.de/leistung.
(4) In case of test orders the Contractor will create the corresponding test report. The result of the activity is a technical estimate regarding the functionality and safety of a technical plant. A certain results can, on the other hand, not be part of the order.
(5) Besides employees of the Contractor other experts from the network can also be assigned for the execution of the tasks.
(6) The Contractor shall carefully choose the persons, who it will use to fulfil its liabilities and will regularly check the suitability of the vicarious agents. The Contractor is explicitly permitted, to commission third parties (besides the network partners named under § 1 Paragraph 4) for the fulfilment of its tasks.
§ 3 Contractual offer, conclusion of contract
(1) All offers are without obligation and non-binding, also with regard to the price details. A contract will only be concluded with the confirmation of the Contractor. Supplementations or changes to the contractual offers by the Customer shall be deemed as a new offer.
(2) The details upon which the offer is based (details of the test) will become part of the order.
(3) Supplementations and order changes must be confirmed in writing by the Contractor.
§ 4 Maturity, additional invoices, advance payment
(1) From receipt of invoices for services provided by the Contractor a term of payment of 10 days will apply. In case of default the Contractor is entitled, subject to further claims, to assert interest in the amount of 9 percentage points above the base lending rate, if the Customer is an entrepreneur within the meaning of Section 14 BGB. The Contractor is entitled to retain test reports and other documents if the Customer is in default after proper invoicing. The right of retention shall apply until the claim has lapsed towards the Customer.
(2) The Contractor is entitled to charge additional expenses, which are incurred by deficient organisation and/or repeat visits and for which the Contractor is not responsible, at the respective valid settlement rates in addition to the own order. This in particular means if a technical plant is not ready for operation, if no safer access is possible to the technical plant (ladder or access system not tested or defective), no keys available for the access or the storage areas cannot be used. Secondary costs, such as for example the rental of a vehicle, technical device or an electricity generator (no final list), which the Customer should have made available, will be forwarded by the Contractor to the Customer with a surcharge of 5%.
(3) The Customer cannot solely withhold its payment, because it does not agree with the result of the test (§ 2 Paragraph 4).
(4) In case of expected significant secondary costs (travelling costs, acquisition of special devices) the Contractor can request an advance payment.
§ 5 Non-disclosure obligation
(1) The Contractor and Customer shall maintain confidentiality with regard to all documents and other information, which they receive in connection with placed orders. The forwarding of documents and information can only be carried out after obtaining the written consent of the contractual partner. This shall have no effect on the statutory obligations for disclosure, for example towards authorities. In connection with the fulfilment of contractual obligations that are customary for the contract towards manufacturers of the technical plant, maintenance companies, operational managers, insurers, courts and financing banks etc., it is permitted to forward expert’s opinions and reports.
(2) The contractual partners assure towards one another the confidentiality over a period of five years.
(3) The non-disclosure obligation shall cease to apply to information, which was demonstrably known prior to the conclusion of the contract.
§ 6 Obligations of the Customer to provide assistance
(1) Insofar as tests and acceptances are part of the commission of the Contractor, this is to be reported to the Contractor in time, as a rule 14 days in advance.
(2) The prerequisites are to be created by the Customer and by the companies, at which the Contractor is to work, which guarantee a fast and smooth fulfilment of the tasks assumed by the Contractor. The information, construction documents, auxiliary materials, hoisting devices and plant-own test equipment, etc. which are necessary for performing the tasks, are to be made available free of charge. The Customer is responsible for the accuracy of the data, documents etc. transmitted to the Contractor. If applicable, incurred additional costs owing to false details shall be for the expense of the Customer.
(3) The persons entrusted with the test tasks of the Contractor are entitled to access the corresponding properties and rooms in connection with the fulfilment of their tasks and to carry out the necessary work.
(4) The Customer shall ensure that the persons named under (3),are given access to the technical plant and, on its part, all safety precautionary measures stipulated at the time of the test can be complied with.
(5) Changes, which have an influence on the tasks and activities of the commission, are to be communicated to the Contractor without delay at least in a text form.
§ 7 Prices, binding period
(1) The Contractor will remain bound to an offer, insofar as not otherwise agreed, for 14 days.
(2) The prices stated in the offer are net prices plus the statutory owed value added tax of currently 19%.
§ 8 Subsequent fulfilment, remedy of defects
(1) The features of the respective service package, stipulated on the website, are final. However, the features can be changed and extended within the scope of a further development. The features then described on the website will then apply (see www.windexperts.de).
(2) Otherwise, the statutory warranty rights due to defects shall apply.
(3) If a defect is reported by the Customer the Contractor has the right to subsequently improve its work twice within a reasonable deadline.
§ 9 Liability and limits to liability
(1) The contractual partners will be liable towards one another in case of wilful intent or gross negligence for all damages caused by them as well as their legal representatives or vicarious agents to an unlimited extent.
(2) In case of slight negligence the contractual partners will be liable in the event of the injury to life, body or the health to an unlimited extent.
(3) Incidentally, a contractual partner will only be liable insofar as it has breached an essential contractual obligation. Essential contractual obligations are those obligations, which are of special significance for the achievement of the objective of the contract, also all of those obligations, which in the event of a culpable breach may lead to the fact that the achievement of the contractual purpose is jeopardised. In this case the liability is limited to the compensation of the foreseeable, typically occurring damages.
(4) The liability according to the German Product Liability Act shall remain unaffected.
§ 10 Statute-of-limitations
Liability and warranty claims shall become statute-barred one year after completion of the order. This shall not apply in case of liability owing to wilful intent (Section 202 Paragraph 1 BGB).
§ 11 Force majeure
(1) “Force majeure” within the meaning of these General Terms and Conditions shall be assumed in case of an external event, not relating to the company, caused by natural forces or by acts of third parties, which in a human opinion and based on experience is unforeseeable, cannot be prevented or rendered harmless with financially feasible means, also by showing the most extreme care and attention that can be reasonably expected according to the factual situation and which is not to be taken into account by the business entrepreneur either owing to its operational frequency.
(2) None of the contractual partners is obligated to fulfil the contractual obligations in the event and for the duration of force majeure.
(3) An agreed contractual penalty is not forfeited if the contractual partner cannot fulfil its obligation from the contract owing to force majeure. Insofar as deadlines have been agreed, which cannot be fulfilled owing to the influence of force majeure, these deadlines will be inhibited as long as the force majeure develops its effect. After the lapse of this effect the deadline will continue to apply and the contractual partners subsequently carry out the agreed service.
(4) In particular the following events are to be seen as force majeure within this meaning: Events for which the contractual partner is not responsible, such as
- Fire, explosion, flooding,
- Acts of war,
- Rough seas, bad weather, fog or
- Technical problems which cannot be influenced by a contractual partner in general
(5) Each contractual partner shall notify the other partner without delay about the occurrence of an event of force majeure.
§ 12 Offsetting
Offsetting is only possible against undisputed claims or claims which have been determined final and binding as well as against counter-claims from the same contractual relationship.
§ 13 Termination for good cause
The right to termination for good cause according to Section 314 BGB shall remain unaffected by these General Terms and Conditions.
§ 14 Copyrights
(1) The work (report, expert’s opinion) of the Contractor is subject to copyright.
(2) The Contractor shall grant the Customer a simple right of use for the contractual use of the work.
(3) The forwarding, publication, reproduction and changes to the work are not permitted.
(4) Uses, which go beyond the extended stated under Paragraph 2, shall require the written consent of the Contractor.
(5) The results collected in expert’s opinions and reports may only be depicted in full and without omitting essential aspects. Only if a distorted or falsified perception of the determined results is excluded, will their use in excerpts be permitted.
§ 15 Data protection
The contractual parties undertake to comply with the regulations of the GDPR with regard to the data protection and the data security. For details on the part of the Contractor reference is made to the privacy statement on the Contractor’s website.
§ 16 Final regulations
(1) The exclusive place of jurisdiction and place of performance for all disputes from and in connection with this contract is the registered seat of the Contractor. The right of both parties to seek interim legal protection before the courts of jurisdiction according to the statutory provisions, shall remain unaffected.
(2) Exclusively German law shall apply under the exclusion of the provisions of the international private law and the UN Convention on Contracts for the International Sale of Goods (CISG).
(3) The conclusion of the contract as well as later amendments and supplements to the contract shall require a written form in order to be valid. This shall also apply to the change to this clause. No oral collateral agreements have been reached.
(4) Should one provision of this contract be or become invalid, an inadmissible deadline determination or a loophole be contained or featured, this shall have no effect on the legal validity of the other provisions. Insofar as the invalidity cannot be derived from a breach of Sections 305 et seqq. BGB (validity of General Terms and Conditions), instead of the invalid provision a valid provision shall be deemed as agreed, which shall as far as possible correspond with that which was intended by the parties from a commercial point of view. The same shall apply for the event of a loophole. In the event of an inadmissible deadline the extent that is permitted by law shall apply.
windexperts Prüfgesellschaft mbH
Status February 2019