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General Terms of Business of DREWAG (DREWAG hereinafter referred to as "Client") 
General Terms of Business of DREWAG (DREWAG hereinafter referred to as "Contractor")
General Terms of Business
of DREWAG – Stadtwerke Dresden GmbH
for Deliveries and Services (DREWAG hereinafter referred to as "Client")
Section 1 Scope of Application / Content of the Contract
(1) These General Terms of Business apply exclusively to all contracts
concerning deliveries and services between DREWAG - Stadtwerke
Dresden GmbH (hereinafter „Client“) and third parties (hereinafter
„Contractor“).
(2) No other terms, particularly deviating or supplementary terms of
the Contractor, shall become part of the contract, even if the Client
has knowledge of such terms and/or does not expressly object to them
or the Client unconditionally takes receipt of quotations, deliveries or
services.
(3) All terms of the contract shall be laid down in writing in the
quotation, in the order and/or in the confirmation of the contract. No
verbal collateral agreements exist.
Section 2 Conclusion of the Contract
(1) No visits, cost estimates, quotations, presentations or prospectuses
of the Contractor shall be remunerated.
(2) Additional deliveries or services with an order value of over 400
euros shall only be legally binding in the case of a written purchase
order signed by two authorised representatives of the Client. In the case
of purchase orders placed by e-procurement, the separate stipulations
agreed upon there shall apply.
Section 3 Implementation of the Contract
(1) The Contractor shall only be permitted to transfer the order, or
parts thereof, to third parties (subcontractors) with the Client‘s prior
written consent.
(2) When performing its contractual duties, the Contractor shall comply
with all relevant legal and technical stipulations and all provisions
under environmental law.
Section 4 Documents and Supplies from the Client
(1) The Contractor undertakes to diligently hold in safekeeping, and
insure against fire, theft and other losses at its own expense, the
material handed over to it for re-working and the items, documents,
models, drawings, samples etc. handed over to it for use.
(2) Documents, models, drawings and samples shall remain the Client‘s
property and be returned to the Client without undue delay after the
service has been rendered or the items ordered have been delivered.
Duplication, alteration and passing on to third parties without the
Client‘s written consent are prohibited and shall entitle the Client to
compensatory damages. The products manufactured according to such
material submitted shall only be delivered to the Client, not to third
parties.
(3) The material supplied by the Client shall remain the Client‘s
property even if it is combined with other material. The re-working or
remodelling of material supplied by the Client shall take place for the
Client as the manufacturer as per section 950 BGB [German Civil Code].
The Contractor shall hold the processed item in safekeeping for the
Client, free of charge, with the diligence customary in the trade.
Section 5 Prices
The prices agreed upon, including value-added tax, are fixed prices.
They include all incidental expenses such as insurance costs, freight
charges, delivery costs, unloading costs, packaging costs, customs
duties and other charges and levies.
Section 6 Set Periods and Dates
(1) All set dates and periods agreed upon are binding.
(2) The time of receipt of the goods at the place of performance, or
the time of completion ready for acceptance, shall be authoritative for
compliance with set dates or periods.
(3) If it is evident to the Contractor that a set date or period cannot
be complied with, it shall give the Client written notification thereof
without undue delay, stating the reasons and the anticipated duration
of the delay.
Section 7 Transport Risk, Period of Delivery/Performance, Default
(1) The Contractor shall bear the transport risk.
(2) The Client shall be entitled to reject premature deliveries or services,
or store delivered goods, until the agreed date for delivery. The
Contractor shall bear the expense and risk in both cases.
(3) The Contractor shall be liable for all losses arising from default.
Upon the expiration of a reasonable grace period to no avail, the Client
shall be entitled to rescind the contract and demand compensatory
damages.
(4) Without prejudice to other rights, the Client shall, in cases of default,
be entitled to demand - for every full business day of default in delivery
or performance - a contractual penalty in the sum of 0.2 %, but in total
no more than 5 %, of the total order value. The contractual penalty
shall be credited against the default-related loss to be compensated
for. The Client shall be entitled to demand the contractual penalty in
addition to performance.
(5) The unconditional receiving/acceptance of late deliveries or services
shall not be deemed to be a waiver of the contractual penalty. Any
declaration by the Client in which the Client reserves its right to assert
the contractual penalty shall be deemed to have been issued in due
time, if it is received at the Contractor no later than 10 days after the
receipt/acceptance of late deliveries or services.
Section 8 Acceptance
(1) Acceptance shall be declared in writing. If acceptance of the item
delivered, or of the work ordered, necessitates the involvement of
public authorities, the Contractor shall create the conditions necessary
for this.
(2) In cases of force majeure and in cases of strike, lockout, business
disruption or other events beyond the Client‘s influence, the Client
shall be entitled to postpone receiving/accepting the goods or services,
without the Contractor being entitled to claims as a result thereof.
Section 9 Invoicing and Payment
(1) Invoices shall not be enclosed with the consignment. Rather, they
shall be submitted in proper form immediately upon delivery or
performance, separately for every purchase order, and shall state the
purchase order number, delivery note number and material number
and specify the service. Value-added tax shall be shown separately on
the invoices.
(2) Sub-invoices and final invoices shall be expressly indicated as such.
(3) In the case of time-work, the timesheets checked by the Client, or
the acceptance certificates in the case of deliveries or services which are
subject to acceptance, shall be enclosed with the invoice.
(4) The invoices shall, at the Client‘s option, be settled within 14 days
with a 3 % cash discount or within 30 days without any deduction,
calculated from the time of receipt of the invoice, but not before the
time of delivery/acceptance.
(5) Overpayments shall be refunded to the Client by the Contractor
within 10 days of receipt of a demand for a refund. The time of receipt
of the payment at the Client shall be authoritative for observance of
the time limit. The Contractor shall not be entitled to plead loss of
enrichment under section 818, subsection 3 BGB [German Civil Code].
Section 10 Retention of Title
The Client shall not accept any prolonged or extended retention of
title.
Section 11 Set-off, Assignment of Receivables
(1) The Contractor shall only be permitted to set off on the basis of
receivables which are uncontested or have been determined by a final
and non-appealable court judgement.
(2) Receivables against the Client shall only be assignable to third
parties with the Client‘s prior written consent. Section 354a HGB
[German Commercial Code] remains unaffected.
Section 12 Notification of Misgivings, Liability for Defects
(1) Prior to beginning to carry out the purchase order, the Contractor
shall give notification of any misgivings about any specifications,
drawings or other documents from the Client which belong to the
purchase order. The Client‘s consent to drawings, calculations and
other technical documents from the Contractor shall not affect the
Contractor‘s obligations under its warranty, nor any damage claims of
the Client.
(2) The Client shall be fully entitled to the statutory defect-related
claims. Except where a longer warranty period is provided for by law,
the warranty period shall be 3 years. In the case of buildings, including
the delivery or construction of movable items which are to be used
for the subsequent construction of a building in conformity with the
contract, even if those movable items do not become an essential
component of the building, a time-bar period of 5 years shall apply,
except where a longer period is provided for by law.
(3) If a reasonable period for defect elimination set by the Client
has expired to no avail or the setting of such a period is unnecessary
under section 323, subsection 2 BGB [German Civil Code], or if there is
imminent danger or particular urgency, the Client shall be entitled to
eliminate the defects itself, or through a third party, at the Contractor‘s
expense.
Section 13 Defect-Related Complaints
In cases where goods required to be examined by the Client in
accordance with section 377 of the HGB [German Commercial Code]
are delivered, the period for examining the goods and complaining
of any apparent defect is 7 business days from receipt of the delivery.
The period for complaining of hidden defects is 7 business days from
discovery of the defect.
Section 14 Liability for Losses
(1) The Contractor shall be liable under the statutory provisions for all
losses incurred by the Client, its personnel or third parties as a result of,
or on the occasion of, the execution of the deliveries and/or services,
regardless of whether the losses are caused by the Contractor or its
appointees.
(2) Within the scope of its liability, the Contractor shall indemnify the
Client and its servants against all third-party claims.
(3) The Contractor shall be liable that no patents or other protective
rights of third parties are infringed as a result of use of the items
delivered. The Contractor shall indemnify the Client against all claims
made to it on account of any infringement of a domestic or foreign
industrial property right.
Section 15 Rescission
The Client may rescind the contract, if
a) the Contractor applies for the opening of insolvency proceedings
concerning its assets,
b) an application for the opening of insolvency proceedings
concerning the Contractor‘s assets is rejected due to insufficient
assets.
The statutory warranty rights remain unaffected.
Section 16 Anticorruption Clause
(1) The Client and the Contractor declare their firm will to work against
corruption in any form.
(2) Without prejudice to other rights of termination and rescission,
the Client shall be entitled to terminate or rescind the contract with
immediate effect, if the Contractor or its employees
a) directly or indirectly signal the prospect of, offer, promise or grant
any gifts or other gratuities or other advantages to employees
of the Client who are entrusted with preparing, concluding or
implementing the contract for the Contractor, or to any persons
closely associated with those employees;
b) commits or aids and abets in relation to the Client any criminal
acts which fall under section 298 StGB [Penal Code] (competitionrestricting
agreements in the case of invitations for tenders), section
299 StGB (corruptibility and bribery in business transactions), section
333 StGB (granting of advantages), section 334 StGB (bribery),
section 17 UWG [Act Against Unfair Competition] (betrayal of
business and company secrets) or section 18 UWG (exploitation of
material submitted).
(3) The Contractor shall compensate for all losses incurred by the Client
as a result thereof.
Section 17 Duty to Maintain Secrecy
The Contractor undertakes to maintain secrecy beyond the
discontinuation of the contract in respect of all confidential
information, company secrets and business secrets which come to its
knowledge in connection with the implementation of the contract,
unless the information concerned is already in the public domain.
Section 18 Use of Information under Section 9 EnWG
[Energy Industry Act]
(1) The Contractor undertakes to treat confidentially any grid customer
information and grid information received and shall not directly or
indirectly pass this information on to third parties without the Client‘s
consent. This does not apply to information already published. In
principle, the term „information“ is to be broadly defined and covers
in this context all illustrative material such as records, written material,
recordings, notes, documents etc. Moreover, it is irrelevant whether
the information is made available verbally, in writing or in any other
way. The Client shall expressly designate as confidential any such
economically sensitive or relevant information.
(2) The Contractor‘s employees dealing with grid customer information
and/or grid information shall be informed of the duty to treat
the information confidentially and be instructed accordingly. The
Contractor shall be liable for any culpable breach by its personnel.
(3) Within 10 days of any request from the Client, the Contractor shall
return to the Client all originals and copies containing grid customer
information and/or grid information and shall cease using any other
remaining grid customer information and grid information.
Section 19 Place of Performance and Jurisdiction
(1) Dresden or the place of receipt stated by the Client is the place of
performance for deliveries and services.
(2) In so far as the Contractor is a merchant, a legal entity under public
law or a special fund under public law, Dresden is the agreed place of
jurisdiction.
(3) The laws of the Federal Republic of Germany apply supplementarily
to the stipulations of the contract.
Section 20 Data Protection
The data essential for the implementation of the contract shall be
stored, processed and used centrally. These data shall only be passed
on to third parties in so far as this is permissible under the provisions
of the Bundesdatenschutzgesetz [German Federal Data Protection Act]
and is essential for implementing the contractual relationship. The
Contractor agrees to the processing and use of its data.
Section 21 Final Stipulations
If individual stipulations of the contract are or become wholly or partly
ineffective or unenforceable, this shall not affect the validity of the
other stipulations of this contract. Any ineffective or unenforceable
stipulation shall be replaced with the statutory provision. Where no
statutory provision exists, the Client and the Contractor shall replace
the ineffective or unenforceable stipulation with an effective or
enforceable stipulation which is equivalent to the ineffective or
unenforceable stipulation in so far as possible in terms of the economic
result. The same applies mutatis mutandis to any omission in the
contract.
As of 02/2010
General Terms of Business
of DREWAG – Stadtwerke Dresden GmbH for Deliveries and Services
(DREWAG hereinafter referred to as "Contractor")
Section 1 Scope of Application / Content of the Contract
(1) These General Terms of Business apply exclusively to all contracts
concerning deliveries and services between DREWAG - Stadtwerke
Dresden GmbH (hereinafter „Contractor“) and third parties (hereinafter
„Client“).
(2) No other terms, particularly deviating or supplementary terms of
the Client, shall become part of the contract, even if the Contractor has
knowledge of such terms and/or does not expressly object to them or
the Contractor unconditionally renders deliveries or services.
(3) All terms of the contract shall be laid down in writing in the
quotation, in the order and/or in the confi rmation of the contract. No
verbal collateral agreements exist.
Section 2 Conclusion of the Contract, Execution Documents
(1) Only written quotations signed by two authorised representatives
of the Contractor shall be binding.
(2) The Contractor shall retain the rights of title, rights of use and
copyrights in all documents. These documents may only be made
accessible to third parties within the scope of the contractual
agreement.
(3) Documents, models, drawings and samples shall, upon request,
be returned to the Contractor without undue delay following the
execution of the order or in the event of non-placement of the order.
Section 3 Implementation of the Contract
(1) The Contractor shall render all services by means of suitable
personnel or by means of subcontractors appointed by it.
(2) If several companies operate at a place of performance, the Client
shall be responsible for co-ordinating their deliveries or services with
each other.
Section 4 Set Periods and Dates
(1) Unless otherwise agreed upon, the set periods agreed upon in the
contract shall commence upon the conclusion of the contract, however
not before all prerequisites for the implementation of the contract
and all other prerequisites to be fulfi lled by the Client, particularly its
obligation to draw up or obtain documents, have been met.
(2) If the Contractor‘s duties to perform are impaired by force majeure,
labour disputes or other unforeseeable events which occur after the
conclusion of the contract and are not imputable to the Contractor, the
Contractor shall be released from its duties to perform for the duration
of the impairment. Set periods and dates which have been agreed
upon shall, even within a period of default, be reasonably extended
by the duration of the impediment, however by no longer than 6
months from the occurrence of the event. This shall also apply, if such
circumstances occur at a supplier/subcontractor. The commencement
and cessation of the impediment, as well as the type of impediment
shall be communicated to the Client without undue delay.
Section 5 Prices
All prices are net prices.
Statutory value-added tax shall, in so far as
applicable, be shown separately. Changes to the rate of value-added
tax shall give entitlement to a corresponding price adjustment. This
shall not apply to deliveries or services rendered within four months of
the conclusion of the contract.
Section 6 Due Date, Default, Set-off
(1) Invoices shall be due and payable, without any deduction, within 14
days of the invoice date. In so far as the invoice is received late, the due
date shall be based on the time of receipt of the invoice.
(2) If the Client defaults on payment, the Contractor shall be entitled to
assert the following liquidated compensation for default losses:
1st reminder: 3.00 EUR
2nd reminder: 10.00 EUR
The Client shall remain free to prove that the Contractor has not
incurred a loss at all or has incurred a loss considerably lower than the
said liquidated compensation. The Contractor expressly reserves the
right to assert claims beyond the foregoing.
(3) The Client shall only be permitted to set off on the basis of
receivables which have been accepted or have been determined by a
fi nal and non-appealable court judgement.
Section 7 Retention of Title
(1) The Contractor‘s deliveries shall remain the Contractor‘s property
until the satisfaction of all claims already existing under the business
relationship at the time of the conclusion of the contract.
(2) Until the passage of title, it shall not be permissible to dispose of or
pledge the deliveries or transfer title therein as security.
Section 8 Warranty, Liability, Time-Barring
(1) If the Client is an entrepreneur and lodges a defect-related
complaint, it may only withhold payments on a scale which is reasonably
proportionate to the defects which have arisen.
(2) If the Client is an entrepreneur, its defect-related claims shall become
time-barred one year after the passage of risk. If the subject of the
contract is the delivery of a used item, the warranty shall be excluded.
The stipulations under section 438, subsection 1, no. 2 and section 634a,
subsection 1, no. 2 BGB [German Civil Code] remain unaffected.
(3) If the Client is a consumer and the subject of the contract is the
delivery of a used item, defect-related claims shall become time-barred
one year after the passage of risk.
(4) The liability of the Contractor, its agents in contract and its agents in
tort for losses culpably caused shall be excluded, except where the loss
was brought about by wrongful intent or gross negligence. This shall
not apply in the case of losses arising from injury to life, body or health
or from any culpable breach of material contractual duties, i.e. duties
whose fulfi lment is a prerequisite for the proper implementation of
the contract and upon whose compliance the Client may rely (material
contractual duties).
(5) In the event of any breach of material contractual duties which
is not due to wrongful intent or gross negligence, the Contractor‘s
liability shall be limited to the loss which, at the time of the conclusion
of the respective contract, was typically foreseeable as a possible
consequence of the breach of contract. The Contractor shall not be
liable for consequential losses or lost profi t.
Section 9 Rescission
The Contractor may rescind the contract, if
a) the Client applies for the opening of insolvency proceedings
concerning its assets,
b) an application for the opening of insolvency proceedings
concerning the Client‘s assets is rejected due to insuffi cient assets,
or
c) the Client executes an affi rmation in lieu of an oath.
The statutory warranty rights remain unaffected.
Section 10 Place of Performance and Jurisdiction
(1) The place of the Contractor‘s registered offi ce is the place of
performance for rendering the services.
(2) In so far as the Client is a merchant, a legal entity under public
law or a special fund under public law, Dresden is the agreed place of
jurisdiction.
(3) The laws of the Federal Republic of Germany apply supplementarily
to the stipulations of the contract.
Section 11 Data Protection
The data essential for the implementation of the contract shall be
stored, processed and used centrally. These data shall only be
passed on to third parties in so far as this is permissible under
the provisions of the Bundesdatenschutzgesetz [German Federal
Data Protection Act] and is essential for the implementation of the
contractual relationship. The Client agrees to the processing and
use of its data.
Section 12 Final Stipulations
If individual stipulations of this contract are or become wholly or partly
ineffective or unenforceable, this shall not affect the validity of the
other stipulations of this contract. Any ineffective or unenforceable
stipulation shall be replaced with the statutory provision. Where no
statutory provision exists, the Client and the Contractor shall replace
the ineffective or unenforceable stipulation with an effective or
enforceable stipulation which is equivalent to the ineffective or
unenforceable stipulation in so far as possible in terms of the economic
result. The same applies mutatis mutandis to any omission in the
contract.
As of 02/2010
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