General Terms and Conditions of Business of windcomp GmbH
§ 1 General
(1) The following General Terms and Conditions shall apply to all business relations between windcomp GmbH and its respective business partners for all deliveries of goods, rentals, lease-purchase agreements and services, including those provided within the scope of governmental commissions, even if their validity is not separately agreed.
(2) windcomp GmbH is an independent technical development, service and expert company. It manufactures its products in compliance with the current rules of technology; it also renders its services in accordance with the current rules of technology. windcomp GmbH acts impartially and neutrally.
(3) The assignment and also all future services of windcomp GmbH shall be carried out exclusively on the basis of the order confirmation or the main contract, these General Terms and Conditions and the delivery and service descriptions, even if these have not been agreed separately or expressly in the individual case.
(4) These General Terms and Conditions shall apply exclusively to the contractual relationship between windcomp GmbH and the Client. Deviating, contradictory or supplementary general terms and conditions of business of the ordering party, in particular its terms and conditions of purchase or sale, shall only become part of the contract if and insofar as windcomp GmbH has expressly agreed to their validity in writing. This requirement of consent shall also apply in any case, e.g. if windcomp GmbH delivers or purchases to the Client without reservation in knowledge of the general terms and conditions of the Client.
(5) Insofar as the ordering party is a legal entity, a contract shall only be concluded if it has its registered office in an EU member state or in Switzerland. If windcomp GmbH discovers after conclusion of the contract that the ordering party as a legal entity has its registered office in another country, windcomp GmbH shall be entitled to withdraw from the contract immediately.
§ 2 Reservation
Certificates and test reports issued by windcomp GmbH shall be subject to revocation at any time. This may be exercised, for example, in the event that adaptations of the technical regulations to the state of the art make this necessary or if the Client fails to comply with conditions or instructions of wind-comp GmbH in due time.
§ 3 Scope of deliveries and services, termination
(1) The type and scope of all deliveries and services of windcomp GmbH shall be based on the current state of the art at the time of delivery of the goods or provision of the service in accordance with these contractual provisions. The contract shall come into force with the conclusion of the contract confirmed by windcomp GmbH and shall apply in the case of continuing obligations until the end of the contract agreed in the order confirmation or in the contract. Furthermore, in the case of continuing obligations, windcomp GmbH and the client shall always have the right to terminate the contract without notice for good cause. An important reason exists in particular if one party repeatedly violates an essential contractual obligation or refuses to fulfil a contractual obligation despite a grace period being set. Good cause shall also be deemed to exist if, in the event of default in payment by the Client, an application for the opening of insolvency proceedings has already been made in respect of the Client’s assets, insolvency proceedings have been opened or have been rejected for lack of assets, and the Client has breached its contractual obligations.
(2) Product offers of windcomp GmbH in brochures or on the Internet do not represent a contract offer of windcomp GmbH, but are merely an invitation to submit a purchase offer by the ordering party. With his order, the ordering party submits a binding purchase offer. Order confirmations by wind-comp GmbH merely serve to confirm the receipt of orders from the ordering party and do not by themselves constitute acceptance of the ordering party’s offer to conclude a contract.
(3) For inspections and / or tests and / or measurements, the regulations for inspections and / or tests and / or measurements valid at the time of the inspection and / or test and / or calibration shall be applied.
(4) Safety-relevant changes in the regulations which take place after the time of the contract between windcomp GmbH and its business partners shall be taken into account. windcomp GmbH shall always reserve the right to deviate from the contractually agreed quality of services to be rendered or goods to be delivered, provided that such deviations are customary in trade or represent a technical improvement of the ordered service or the ordered goods.
(5) The Client shall create all preconditions in order to enable windcomp GmbH to provide the service quickly and without any problems. windcomp GmbH shall be granted unrestricted access and inspection to the required extent. Any information, drawing documents etc. necessary for the performance of the tasks and activities shall be made available to windcomp GmbH by the Client in due time.
(6) The Client shall in particular be obliged to accompany the project in the form of working meetings to be agreed upon in each case and to name responsible contact persons as well as to arrange for necessary dialogue partners. The parties agree that windcomp GmbH shall not owe a specific test result or a test success within the scope of tests, but only the dutiful testing and documentation of the test results.
(7) Tests and measurements on wind turbines serve to fulfil public law safety regulations and requirements. They do not replace the maintenance and inspection of the wind turbine by the operator, but only serve as a supplementary measure for assessing the current technical condition in accordance with the commissioned scope of testing.
(8) Subcontractors of windcomp GmbH shall ensure compliance with relevant professional association regulations, valid occupational safety laws as well as generally recognised technical guidelines and regulations.
(9) Delivery dates or deadlines which have not been expressly agreed as binding are exclusively non-binding information. Insofar as windcomp GmbH has expressly agreed a delivery date or period with the ordering party, this shall commence on the day of dispatch of the order confirmation or after receipt of all documents to be provided by the ordering party for the execution of the order, if these documents are not yet available to windcomp GmbH on the day of dispatch of the order confirmation.
§ 4 Confidentiality
(1) The parties shall treat the content of a contract and the information received from the other party within the scope of the obligations of a contract as confidential. The confidentiality of information results either from the corresponding labelling by a party or from its obvious recognisability as a business or trade secret.
(2) The disclosure of information on the contents of the contract by one of the parties, their employees or their agents to third parties is only permissible with the written consent of the other party, unless there is a legal or equivalent obligation to disclose on the part of one or both parties.
(3) If there is a legal, official or contractual obligation to disclose confidential information to third parties who are not subject to professional secrecy, the other party shall be informed of the disclosure in text form without delay. Furthermore, the parties undertake to disclose confidential information received to their employees, vicarious agents or third parties only to the extent that this is necessary for the assessment, preparation and performance of the contract. The parties are obliged to oblige their employees and vicarious agents to maintain confidentiality accordingly.
§ 5 Prices, terms of payment, liquidated damages
(1) Unless otherwise agreed, the invoices of windcomp GmbH shall be payable 14 days after the date of the invoice without deduction. The day of payment shall be the day on which windcomp GmbH can dispose of the invoice amount. In the case of payment by cheque, payment shall only be deemed to have been made when the amount of the cheque has been credited to the account of windcomp GmbH. If the ordering party misses the payment deadline, windcomp GmbH shall be entitled, without further reminders, to demand interest on arrears from the due date at the statutory rate of 9 percentage points per annum above the respective base interest rate of the European Central Bank in accordance with § 247 BGB.
(2) windcomp GmbH shall be entitled to demand reasonable price increases from the ordering party due to changes in wage and material costs for the contractual services or deliveries of goods which take place 4 months or later after the order confirmation. The client’s right to withdraw from the contract or to terminate the contract in the event of reasonable price changes in accordance with the preceding sentence is excluded.
(3) The Client shall only be entitled to set-off, even if notices of defects or counterclaims are asserted, if the counterclaims have been legally established, recognised by windcomp GmbH or are undisputed. The Client shall only be entitled to exercise a right of retention if his counterclaim is based on the same contract.
(4) If windcomp GmbH is entitled to demand compensation from the ordering party instead of performance, the ordering party shall pay a flat rate of 15% of the contract sum. The assertion of further claims shall remain reserved for windcomp GmbH. The Client shall be permitted to prove that windcomp GmbH has not suffered any damage at all or that it has not suffered damage to the amount of the lump sum of 15 % of the contract sum.
(5) Additional services requested by the Client shall be invoiced separately by windcomp GmbH in agreement with the Client according to time and effort. Additional expenses incurred by windcomp GmbH, e.g. due to inadequate organisation on the part of the Client, delays or repeated tests/inspections/measurements and for which windcomp GmbH is not responsible, shall be invoiced separately to the Client at reasonable prices. Additional services shall be charged by windcomp GmbH either according to the hourly rate of the required employees or – after the Client has agreed to fulfil the additional services – according to a cost offer of windcomp GmbH.
(6) In the case of long-term continuing obligations, the following price escalation clause shall apply unless otherwise stipulated in the contract: During the first three years of the contract from the conclusion of the contract, the contractually agreed price shall remain unchanged. For the first time at the end of the third year of the contract, thereafter annually at the end of the year, the price shall be adjusted by windcomp GmbH on the basis of the change in the consumer price index for Germany determined and published by the Federal Statistical Office (Statistisches Bundesamt). The adjustment shall be made in accordance with the change in the cost of living index (base year 2015 = 100). The Client and windcomp GmbH shall accept any change based on this clause as binding for the price. Should the index referred to no longer be published by the Federal Statistical Office during the term of the contract, the corresponding index published by the Federal Statistical Office or, if applicable, its successor organisation shall take its place. If there are several indices to choose from, the one that comes as close as possible to the consumer price index in terms of its calculation requirements (in particular basket of commodities) shall be used. The same shall apply if an index limited to the Federal Republic of Germany is no longer calculated or published. The price change shall take effect retroactively on 01.01. of each year. The price change shall also be made on 31.12. of each year in accordance with the relevant index.
(7) The ordering party shall inform windcomp GmbH of all circumstances which have a significant negative influence on its creditworthiness, in particular payment delays and the insolvency of the ordering party. If windcomp GmbH otherwise becomes aware of such negative circumstances, windcomp GmbH shall be entitled, at its discretion, to demand advance payments or securities from the Client for all existing contractual relationships with windcomp GmbH within a reasonable period of time. If the Client does not comply with this demand within the set period, windcomp GmbH shall be entitled to withdraw from the contract or to terminate long-term continuing obligations. The costs associated with the withdrawal or termination shall be borne exclusively by the Client.
(8) Should the Client be in default of acceptance, windcomp GmbH shall be entitled to demand reimbursement of the damages incurred and any additional expenses from the Client. In the event of non-acceptance of the ordered goods, windcomp GmbH shall be entitled to demand a lump-sum compensation of 15 % from the ordering party. The ordering party shall be entitled to prove that windcomp GmbH has incurred a lower damage; windcomp GmbH shall be entitled to prove a higher, actually incurred damage due to the non-acceptance.
(9) The risk of accidental deterioration and accidental loss of the contractual goods shall pass to the ordering party upon the occurrence of default in acceptance on the part of the ordering party.
§ 6 Due date of invoices
(1) The remuneration for all deliveries and services rendered by windcomp GmbH shall be due for payment without deduction 14 days after the invoice date, unless another payment period has been expressly agreed in the order confirmation of windcomp GmbH or in the contract. In case of default of payment by the Client, windcomp GmbH shall be entitled, subject to further claims, to claim default interest at the statutory rate, to withhold certificates and other documents and/or to suspend or revoke the validity of certificates.
(2) The commercial as well as any other right of retention of the Client shall be excluded. Offsetting with counterclaims of the Client shall also be excluded, unless his counterclaim is undisputed by windcomp GmbH or has been legally established.
§ 7 Warranty
(1) windcomp GmbH shall provide a warranty for its contractual deliveries and/or services for which it is responsible within the scope of due diligence.
(2) Any claims for defects on the part of the Client shall become statute-barred within one year after delivery of the goods or completion of the services of windcomp GmbH. Mandatory statutory limitation and liability provisions such as e.g. liability in the event of the assumption of a guarantee, liability for fraudulent, intentional and grossly negligent action, for injury to life, limb or health, liability under the Product Liability Act and the provisions on the purchase of consumer goods shall remain unaffected.
(3) Warranty claims can initially only be asserted in the form of rectification in accordance with § 635 BGB. If the rectification fails, the Client may demand a reasonable reduction in accordance with § 638 BGB, but not rescission of the contract.
(4) Unless expressly agreed otherwise in writing, deliveries of goods by windcomp GmbH shall always be made uninsured for the account and at the risk of the Client. The risk shall pass to the Client as soon as windcomp GmbH hands over the goods to the person carrying out the transport. If the dispatch of the goods is delayed at the request or due to the fault of the Client, windcomp GmbH shall store the goods properly at the expense and risk of the Client. In this case, the risk shall pass to the Client upon notification of readiness for dispatch. Further claims of windcomp GmbH shall remain unaffected.
(5) Windcomp guarantees a careful and professional solution of the task on all deliveries of goods and services according to the state of the art at the time of the order confirmation or the conclusion of the contract and the relevant regulations and guidelines. Changes of regulations and guidelines between order confirmation/contract conclusion and delivery or service provision shall be taken into account by windcomp GmbH, provided that these changed regulations and guidelines have been made public. windcomp GmbH shall guarantee that the work will be carried out in due time, unless reasons outside windcomp GmbH’s sphere of responsibility lead to delays. windcomp GmbH guarantees a neutral and independent processing and the unrestricted use of its experience.
(6) Insofar as the ordering party is a merchant, claims for defects on the part of the ordering party shall only exist if the ordering party has fulfilled his inspection obligations owed to windcomp GmbH in accordance with § 377 of the German Commercial Code (HGB) and his written obligations to give notice of defects in a timely and proper manner.
§ 8 Claims for defects/liability
(1) If the delivered goods or services show a defect at the time of delivery, windcomp GmbH shall be obliged, at the option of the Client, to remedy the defect or to deliver a defect-free item or service to the Client (subsequent performance), unless windcomp GmbH is entitled to refuse subsequent performance on the basis of statutory regulations.
(2) The Client shall grant windcomp GmbH a reasonable period of time for subsequent performance. During the supplementary performance, the reduction of the purchase price or the service fee (abatement), the assertion of claims for damages due to the defect or the withdrawal from the contract by the ordering party shall be excluded. The rectification of defects shall be deemed to have failed after the second unsuccessful attempt. If the subsequent performance has failed, the Client may reduce the purchase price or withdraw from the contract or terminate continuing obligations such as rental contracts or permanent services. The Client may only assert claims for damages if the subsequent performance by windcomp GmbH has failed. The right of the Client to assert further claims for damages in accordance with the following provisions shall remain unaffected.
(3) If the Client makes changes to the goods of windcomp GmbH, claims for defects on the part of the Client shall lapse insofar as a product change has at least contributed to the defect.
(4) If the ordering party does not follow the operating or maintenance instructions of windcomp GmbH, if the ordering party makes changes to the goods, if the Client replaces parts of the delivered goods or if he uses consumables which do not correspond to the original specifications of windcomp GmbH, all claims for defects and liability claims of the ordering party shall lapse, insofar as one of these circumstances has contributed to the defect.
(5) windcomp GmbH shall be liable for damages – irrespective of the legal grounds – in cases of intent and gross negligence.
(6) Furthermore, windcomp GmbH shall be liable for damages caused by a simple negligent breach of such contractual obligations, the breach of which endangers the achievement of the purpose of the contract, or for the breach of obligations, the fulfilment of which enables the proper execution of the contract in the first place and the compliance with which the Client regularly relies on and may rely on (“breach of so-called essential contractual obligations”). In this case, however, windcomp GmbH shall only be liable insofar as the damages are typically associated with the contract and are foreseeable. Irrespective of the following regulation, windcomp GmbH shall not be liable for the simple negligent violation of other obligations than those mentioned in the preceding sentences.
(7) The aforementioned limitations of liability in favour of windcomp GmbH shall also not apply in cases of liability according to the Product Liability Act, in case of injury to life, body or health and also not if and insofar as windcomp GmbH has fraudulently concealed defects of the purchased goods. Furthermore, the limitations of liability shall not apply insofar as windcomp GmbH has given a quality and/or durability guarantee with regard to the goods or parts thereof within the scope of the given guarantee. However, windcomp GmbH shall only be liable for damages which are based on the violation of a given guarantee, but which do not directly occur on the goods, if the risk of such damage is obviously covered by the given guarantee.
(8) Insofar as the liability of windcomp GmbH is excluded or limited hereunder, this shall also apply to the personal liability of its representatives, employees and vicarious agents.
§ 9 Intellectual property
(1) If the goods are manufactured and delivered by windcomp GmbH in a design specially prescribed by the ordering party, the ordering party shall guarantee that the rights of third parties, in particular patents, utility models, trademarks and other industrial property rights and copyrights of windcomp GmbH are not infringed by the design. In such a case, the ordering party shall be obliged to indemnify windcomp GmbH from all claims of third parties which may result from such an infringement.
(2) windcomp GmbH shall retain the property rights and copyrights to cost estimates, drafts, drawings and other documents prepared by windcomp GmbH; they may only be made accessible to third parties with the prior consent of windcomp GmbH. Drawings and other documents belonging to offers shall be returned to windcomp GmbH by the ordering party upon its request.
§ 10 Retention of title
(1) windcomp GmbH shall retain the title to the goods delivered until final and complete payment has been made (goods subject to retention of title).
(2) The ordering party shall immediately inform windcomp GmbH in writing of all access by third parties, in particular compulsory execution measures as well as other impairments of its (co-) ownership. The ordering party shall compensate windcomp GmbH for all damages and costs incurred due to a violation of this obligation and due to necessary intervention measures against access by third parties.
(3) In the event of any behaviour of the Client in breach of contract – in particular default of payment – windcomp GmbH shall be entitled to withdraw from the contract after having set a reasonable period of time in advance and to demand the return of the goods subject to retention of title and/or, if applicable, to demand the assignment of the Client’s claims for return against third parties. The taking back of the goods subject to retention of title by windcomp GmbH shall constitute a withdrawal from the contract, as shall the seizure thereof by windcomp GmbH. After taking back the goods subject to retention of title, windcomp GmbH shall be entitled to realise them; it shall set off the realisation proceeds against the liabilities of the Client – minus reasonable realisation costs.
(4) Any processing or transformation of the reserved goods shall always be carried out for windcomp GmbH as manufacturer. If the reserved goods are processed with other objects not belonging to windcomp GmbH, windcomp GmbH shall acquire co-ownership of the new object in the ratio of the value of the reserved goods (total gross price) to the other processed objects at the time of processing. If the (co-)ownership of windcomp GmbH expires due to combination or mixing, the parties hereby agree that the (co-)ownership of the ordering party in the unified object shall pass to windcomp GmbH in proportion to the value. The Client shall keep the (co-)ownership of windcomp GmbH free of charge.
(5) In addition to the aforementioned provisions, windcomp GmbH shall additionally retain ownership of the goods subject to retention of title vis-à-vis Clients who are merchants, until the Client has fulfilled all claims arising from the business relationship with windcomp GmbH. The ordering party shall be entitled to sell goods subject to retention of title in the ordinary course of business as long as he is not in default of payment. Pledging or transfer of ownership by way of security shall not be permissible. Upon conclusion of the contract, the Client shall assign to windcomp GmbH all claims arising from the resale or any other legal ground (insurance, tort) with regard to the goods subject to retention of title (including balance claims), irrespective of whether the Client has resold the goods subject to retention of title without or after processing; windcomp GmbH shall accept the assignment. The Client shall remain revocably entitled to collect this claim for his account in his own name even after the assignment. The authority of windcomp GmbH to collect this claim itself shall remain unaffected by this. However, windcomp GmbH undertakes not to collect the claim as long as the Client fulfils his payment obligations, does not fall into arrears and, in particular, no application for the opening of insolvency proceedings against the assets of the Clientl has been filed or his payment has been suspended. Otherwise, windcomp GmbH shall be entitled to demand that the ordering party informs windcomp GmbH of the assigned claim and its debtor, provides all information required for collection, hands over the relevant documents and informs the third party debtors of the assignment.
(6) windcomp GmbH undertakes to release the securities to which it is entitled at the request of the ordering party if the realisable value of the securities of windcomp GmbH exceeds the claim to be secured by more than 15%. The selection of the securities to be released shall be incumbent upon windcomp GmbH.
§ 11 Force majeure
(1) Events of force majeure which make deliveries and/or services of windcomp GmbH considerably more difficult or temporarily impossible shall entitle windcomp GmbH to postpone the performance of its deliveries and/or services by the duration of the hindrance and by a reasonable start-up period. Industrial disputes and similar circumstances shall be deemed equivalent to force majeure insofar as they are unforeseeable, serious and not the fault of windcomp GmbH
(2) Delays in delivery and performance due to force majeure, natural disasters as well as due to industrial disputes through no fault of windcomp GmbH or other unforeseeable and non-culpable impediments to performance at windcomp GmbH which cannot be overcome by reasonable expenditure shall entitle windcomp GmbH to postpone the delivery date by the duration of the impediments to performance caused by these circumstances – however, for a maximum of six weeks. windcomp GmbH and the ordering party shall be entitled to withdraw from the contract if the aforementioned reasons lead to an extension of the delivery date by more than six weeks; the ordering party shall be at liberty to exercise other statutory rights of withdrawal at an earlier point in time – for example, due to the discontinuation of the basis of the contract or due to the impossibility of performance by windcomp GmbH for which windcomp GmbH is not responsible.
(3) If the production of the goods or a service of windcomp GmbH is delayed without windcomp GmbH being responsible for this delay, the delivery period agreed in the order confirmation or the contract shall be automatically extended. This shall apply in particular to delays due to events which lie in the sphere of the ordering party. Furthermore, this deadline extension shall apply in favour of windcomp GmbH for all cases of force majeure, in particular war, terror, natural disasters, pandemics, strikes, orders of the public authorities and similar.
§ 12 Data storage
(1) Insofar as windcomp GmbH receives personal data of the Client or his employees within the scope of a contract, windcomp GmbH shall always observe the requirements of data protection, in particular according to the Federal Data Protection Act and the European Data Protection Regulation (“DSGVO”).
(2) The collection, storage and use of personal data of the ordering party and its employees by windcomp GmbH and its suppliers shall exclusively take place for the processing and fulfilment of concluded contracts with the ordering party. A transfer of personal data by windcomp GmbH to other third parties, except suppliers, is excluded, unless windcomp GmbH is obliged to do so by law or by official orders. After termination of the entire business relationship between the Client and windcomp GmbH, the latter shall be obliged to delete data stored in writing or electronically, insofar as this is technically possible and can be done with reasonable effort. This obligation shall not exist if, due to official or legal regulations, the storage of such data by wind-comp GmbH is required even after the end of the business relationship.
(3) As data subjects of the personal data stored by windcomp GmbH, natural persons have the right to information pursuant to Article 15 of the GDPR, a right to rectification and deletion under the conditions of Articles 16 and 17 of the GDPR, a right to restriction of processing pursuant to Article 18 of the GDPR, a right of objection under the conditions of Article 21 of the GDPR and a right to data portability pursuant to Article 20 of the GDPR.
§ 13 Place of performance – place of jurisdiction – applicable law
(1) The place of performance for all obligations arising from or in connection with the order shall be the registered office of windcomp GmbH recorded in the Commercial Register, unless expressly stated otherwise in the order confirmation or the contract.
(2) The place of jurisdiction for the assertion of claims of both parties shall be the court responsible for the registered office of windcomp GmbH insofar as the prerequisites for a court agreement according to § 38 ZPO apply to the ordering party (merchant status).
(3) The contractual relationship and all legal relationships with windcomp GmbH shall be exclusively subject to the law of the Federal Republic of Germany applicable between domestic contractual partners, excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG).
§ 14 Severability clause
Should individual provisions of the contract between the Client and windcomp GmbH or these General Terms and Conditions be or become invalid in whole or in part, the validity of the remaining provisions of the contract and these General Terms and Conditions shall not be affected. In the case of translations of the contract and/or these General Terms and Conditions, these shall only be made for the understanding of the Client. The German version shall always be decisive for the interpretation of the contract, an order confirmation and/or these General Terms and Conditions.
– Berlin, as of November 2021