General Terms and Conditions of aquagroup AG
1 General – scope of application
1.1 These General Terms and Conditions shall apply to all present and future business relations.
1.2 The clientele of aquagroup AG (aquagroup) consists solely of entrepreneurs. Entrepreneurs as contemplated by these General Terms and Conditions are defined as physical or legal persons or partnerships with legal capacity exercising commercial or self-employed occupational activities with whom a business relationship is entered.
1.3 Any differing, conflicting or supplementary Terms and Conditions shall not become an integral part of the contract even if they are known unless their validity is expressly agreed in writing.
2 Conclusion of contract
The prices quoted in aquagroup’s offers are subject to change within the scope of the customary quality tolerances. aquagroup’s written confirmation of order shall be relevant for the contents of a contract. Any modifications, oral agreements, promises and ancillary agreements require aquagroup’s prior written confirmation to become effective. The same applies to any elimination by agreement of this written form requirement.
3 Property, utilization
3.1 aquagroup installs equipment for the production of NADES products at its customers’ premises. The equipment remains the property of aquagroup. aquagroup may demand or carry out the marking of the equipment as aquagroup’ s property. The customer is not authorized to relocate the equipment.
3.2 aquagroup performs the maintenance of the equipment, including the supply of spare parts or replacement units where needed. If and to th extent agreed in writing, the customer may remove the NADES product from the buffer vessel of the unit for use within its company or any of its associated companies. However, the resale of NADES products I prohibited.
3.3 The customer is obliged to indemnify and hold the equipment harmless from third party rights and to protect it from access by third parties. The customer may not sell, mortgage, lease or lend out the equipment or dispose of it in any other manner.
3.4 The customer may not connect the equipment to a piece of land or a building except for a temporary purpose, and may not combine it with another movable object into a uniform object.
4.1 The prices stated in the contract are net cash prices. Remuneration is based on the prices valid on the date of issuance of the order confirmation, plus the VAT valid on that date.
4.2 Unless otherwise expressly agreed in writing, all invoices are payable net, free of charge by bank transfer, exclusively to aquagroup, within eight (8) days of the invoice date. After expiry of the 8-day payment term, the customer will be in default of payment. Progress payments will be made in accordance with the milestones specified by aquagroup. Whenever one of the required due dates is exceeded, the customer will be in default of payment for the respective payment due. During the period of default, the customer agrees to pay interest on the debt equaling 8 percentage points above the base rate. aquagroup reserves the right to prove and claim higher damages caused by delay. Moreover, the customer shall bear all collection costs accrued.
4.3 The deduction of quantity discounts or cash discounts is subject to prior written agreement. The date relevant for punctual payment shall be the date of receipt of payment by aquagroup. Bill transactions are subject to aquagroup’s prior consent.
4.4 Incoming payments will, irrespective of the payer’s dispositions, be offset against the oldest and outstanding claims against the customer.
4.5 In the event of default of payment or justified doubts as to a customer’s ability to pay or credit standing, or when dealing with new customers, aquagroup may accelerate the maturity of all claims from that business relationship. Moreover, aquagroup may in the event of default of payment cancel previously confirmed orders without giving rise to recourse claims on the customer’s part.
4.6 The customer is not entitled to an offset unless its counterclaims either have become res judicata or were acknowledged by aquagroup. Offsets are subject to the customer’s express prior consent. The customer may not exercise any rights of retention unless the customer’s counterclaim is based on the same contractual relationship.
5.1 The customer is obliged to handle and utilize the equipment carefully and according to the principles of specified normal operation. The customer is obliged to replenish, at his own risk and cost, suitable salt and softening agent made by aquagroup. The customer is furthermore obliged to co-insure the equipment within the scope of the company’s existing inventory insurance against theft, fire, vandalism, damage by overvoltage and other damages, which may be caused in the plant. The customer is obliged to grant aquagroup access to the equipment for maintenance and inspection purposes at any time during the reasonable course of business. The Customer is obliged to notify aquagroup immediately of any incidents or failures.
5.2 aquagroup vouches only for the performance and product characteristics specified in the NADES safety data sheet. aquagroup does not assume any liability over and beyond these specified product characteristics, notably to characteristics of the customer’s products treated with NADES products. The customer indemnifies and holds aquagroup harmless from any third-party claims arising from product liability for the customer’s products.
5.3 In the event of slightly negligent breaches of duty, aquagroup’s liability shall be limited to the foreseeable, average, direct damage typical of this type of contract and goods. The same applies to slightly negligent breaches of duty by aquagroup’s legal representatives or vicarious agents. aquagroup will not be liable for slightly negligent breaches of immaterial contractual obligations.
5.4 Liability for defects not caused by aquagroup, notably defects caused by inappropriate storage at the customer’s premises or damages caused by inappropriate transport or processing is excluded.
5.5 The customer is obliged, prior to the use of NADES products, to check these products for suitability and to obtain information on the appropriate use and the required safety measures from the technical data sheets available from aquagroup. Oral consultations are without commitment and do not justify any liability claims unless the consultations were performed in a grossly negligent or intentionally false manner.
5.6 The above liability limitations do not apply to any of the customer’s claims from product liability. Nor do these liability limitations apply to any injuries to body or health or loss of life sustained by the customer as a result of aquagroup’s negligence.
5.7 Customers’ claims for damages shall become state-barred after one (1) year following commencement of the contract. This provision shall not apply if aquagroup is guilty of gross negligence or in case of injuries to body or health or loss of life sustained by the customer as a result of aquagroup’s negligence.
6.1 aquagroup guarantees, for defects in the goods, warrants at its discretion by repair or replacement.
6.2 If the supplementary performance fails, the customer may in principle demand, at his discretion, a reduction of the remuneration (reduction) or cancellation of the contract (withdrawal). In the event of a minor breach of contract, especially in the case of only minor defects, the customer has no right of withdrawal.
6.3 The customer is obliged to check the goods immediately upon receipt. The customer must notify aquagroup of obvious defects within a period of two weeks from receipt of the goods in writing. Otherwise, the assertion of warranty claims is excluded. The timely dispatch shall be sufficient to observe the deadline. The customer bears the full burden of proof for all claims, in particular for the defect itself, for the time of the discovery of the defect and for the timeliness of the complaint.
6.4 If the customer chooses to withdraw from the contract because of a legal or material defect after failed supplementary performance, he is not entitled to any claim for damages due to the defect.
6.5 If the customer chooses compensation for damages after failure, the goods remain with the customer, if this is reasonable for him. The compensation is limited to the difference between the purchase price and the value of the defective item. This does not apply if aquagroup has fraudulently caused the breach of contract.
6.6 The warranty period for delivered goods is one year from the delivery of the goods. This does not apply, if the customer has not reported the defect to aquagroup in time.
6.7 In principle, only the product description of aquagroup is agreed as the quality of the goods. Public statements, suggestions or advertising by aquagroup or third parties do not constitute a contractual description of the quality of the goods.
6.8 In the legal sense, the customer does not receive any guarantees from aquagroup.
Transfer of risk
The risk of accidental loss and accidental deterioration of the goods is transferred to the customer upon the surrender, in case of the purchase to destination, upon the delivery of the goods to the forwarding agent, during the sale of the consignment with the delivery of the item to the carrier, the carrier or the person or institution otherwise responsible for the execution of the consignment. The place of performance for deliveries and services is D – 92637 Weiden. The transfer is the same, if the customer is in default of acceptance.
8 Force majeure
In case of force majeure, i.e. circumstances or incidents, which cannot be avoided even by the extreme care and proper business management to be reasonably expected, both contractual partners shall, for the duration of the disturbance and to the extent of its effects, be exempt from the fulfilment of their contractual duties. Should any of the delays resulting from the event of force majeure exceed the duration of six (6) weeks, either of the contractual partners may withdraw from the contract to the extent of the scope of supply and services concerned. No further claims exist.
Rental of equipment
If aquagroup leases an investment to the customer, the above provisions under no. 3, 6 and 7 lapses, these do not apply to the leasing of facilities. For rental, however, the following additional regulations apply:
9.1. aquagroup installs devices for generating the products NADES / NADES 2.0. The systems remain aquagroup’s property. aquagroup may make or demand a designation of the equipment as their property. The customer is not entitled to change the location of the devices.
9.2. aquagroup will carry out the maintenance of the equipment including the delivery of any required spare parts or replacement equipment. If and insofar as this has been agreed in writing, the customer is entitled to remove the product NADES / NADES 2.0 from the NADES / NADES 2.0 buffer container of the device and to use it in his company as well as with companies affiliated under corporate law. In addition, a resale of the products NADES / NADES 2.0 is not permitted.
9.3. The customer is obliged to keep the systems free of third party rights and to protect them from any access by third parties. The customer may not sell, pledge, rent, lend or otherwise dispose of the investments.
9.4. The customer may not attach the devices with a property or a building for a temporary purpose and with another movable property to a unitary thing.
9.5. The customer is obligated to a careful and proper use of the device. The customer fills in suitable salt and, if necessary, “Descaler” according to aquagroup specification. Furthermore, the customer undertakes to insure the device as part of the existing inventory insurance against theft, fire, vandalism, damage caused by overvoltage and other damage caused during operation. The customer grants aquagroup access to the device for maintenance and control purposes at any time within the scope of the operational procedure. In the event of faults, the customer is obliged to notify aquagroup immediately.
10 Final provisions
10.1 The laws of the Federal Republic of Germany shall apply. Application of the UN CISG shall be excluded. The agreed place of performance for deliveries and services shall be D-92637 Weiden.
10.2 The courts at the place of business of aquagroup shall have exclusive jurisdiction for all controversies arising out of or in the context of deliveries or services of aquagroup. aquagroup may also sue the customer at its place of general jurisdiction.
10.3 Should any of the provisions of the contract with the customer, including the present General Terms and Conditions, be or become ineffective fully or on part, the validity of the other provisions shall remain unaffected. The provision which has become fully or partly invalid shall be replaced by a provision coming as close as possible to the economic intents and purposes of the invalid provision.
Version: August 2018