German Water and Energy Group

General Conditions of Sale and Delivery

(1) Scope

1. The sales/deliveries we provide are performed exclusively on the basis of the following terms, to which our customers declare their consent upon placement of order. These terms apply for all present and future business relations between the contracting parties even if they have not been explicitly agreed again but have been received by the party ordering in association with an order confirmed by us.
    
2. Different, conflicting or supplementary general terms and conditions of the client are not incorporated in the contract, even if they are known to us, unless we have issued explicit written acknowledgement of their validity.

(2) Conclusion of Contract, Obligation to Perform, Delivery Times

1. Our offers are not binding. They are subject to technical modification and to modification in form, colour and/or weight within the scope of that which the customer can reasonably be expected to accept.
    
2. By placing an order for goods the customer declares with binding force that he desires to acquire the goods. We are entitled to accept the offer of contract set out in the order within four weeks of the date of the order is placed.
    
3. Arrangements made or confirmed in writing and/or by fax are exclusively material with respect to the acceptance, scope and the execution of supply. Agreements or subsidiary agreements made by telephone or orally are not valid without written confirmation.
    
4. In the case of corporate customers, the provisions in § 312 e (1) sentence 1, nos. (1)- (3), and § 312 e (1) sentence 2 of the German Civil Code (Bürgerliches Gesetzbuch - BGB) do not apply.
    
5. The execution of the contract is subject to the proper, complete and punctual availability of supplies and raw materials from our suppliers. This applies only if we are not responsible for the non-delivery or incorrect delivery and/or delay of delivery and if we have concluded a congruent hedging transaction with our supplier.
    
6. The customer will be informed without delay of the unavailability of sale/delivery. Any consideration rendered by the customer will be refunded without delay.
    
7. In the event of the constitution of obstacles affecting performance by us or our suppliers that are due to circumstances amounting to force majeure, we are released from our obligation to deliver a long as the obstacle remains. Stipulated delivery deadlines will be extended in the appropriate scope. In particular, war, strikes and lock-outs at our subcontractors or - to the extent that the strike or lock-out is lawful - at our company, inner unrest, terrorist attacks and natural disasters will be deemed as amounting to force majeure.
    
8. In the event of illegal industrial actions (in particular strike or lock-out) at our company, we are not liable if no more than mild negligence can be imputed to us.
    
9. If the obstacle as defined in Item 6 of this provision is of a lasting nature, we are entitled to withdraw from the contract unless it was already possible to identify the obstacle upon conclusion of the contract. In this case, we will notify the customer in accordance with subsection 5 sentence 3 of this section without delay and refund any compensation rendered.
    
10. We are entitled to perform partial deliveries. Partial deliveries will be billed immediately.
     
11. When the supplies owed by us have been defined solely on the basis of class of goods, we are obliged to deliver from our own production output. If in accordance herewith we are not obliged to deliver, we shall notify the client without delay in accordance with subsection 5 sentence 3 of this section and make restitution of any consideration already rendered without delay.

(3) Reservation of ownership

1. In the case of contracts with consumers, we will retain ownership of the goods until such time as complete payment of the purchase price has been made. In the case of corporate customers, we will retain ownership of the goods until such time as all claims arising from the ongoing business connection, irrespective of their legal grounds, have been settled (reserved goods).
    
2. Manipulation and processing of reserved goods will occur on our behalf as the manufacturers in the meaning of § 950 BGB, without causing any obligations on our behalf. Processed goods will be deemed reserved goods. In the event of that reserved goods are joined together or combined we will be entitled to co-ownership rights to the newly created item or the stock of goods pro rata with respect to the invoice value of the reserved goods and the invoice value of the other goods. If our property ceases to exist through the act of connecting or combining, the client hereby transfers to us ownership of the item belonging to him or of the new stock of goods in the extent of the invoice value of the reserved goods. The customer shall hold new property in safe custody on our behalf at no charge.
    
3. The customer is obliged to handle the goods with care. If maintenance or inspection work is necessary, the customer is to perform such work at regular intervals his own expense.
    
4. The customer is obliged to notify us without delay of the attachment by a third party of the goods (e.g., seizure by court authorities) or of any damage or the destruction of the goods. The customer must also inform us without delay of any change of possession of the goods or change in his own registered location.
    
5. In the event of any action on the part of the customer that is contrary to the terms of this contract, in particular in the event of delay in payment or breach of an obligation per subsections 3 and 4 of this section, we are entitled to withdraw from the contract and demand the return of the goods.
    
6. If we demand the return of the goods as per subsection 5 of this section, the customer, if he is a corporate customer, is obliged to return the goods upon our first request.
    
7. The customer is revocably entitled to resell the goods in the regular course of business. The performance by the customer of a contract for work or contract for work and materials or for the installation in real property or in plants associated with real property will also be deemed as constituting resale.
    
8. The customer hereby assigns to us all claims in the amount of the invoice amount that accrue to him respective of third parties through resale. We accept the assignment. Pursuant to this assignment, the customer is entitled to collect on the claims in his own name and on his own account. We reserve the right to collect on the claims ourselves if the customer has failed to honour his payment obligations properly and fallen into arrears.
    
9. Upon our request, the customer is obliged to inform third parties of the transfer of co-ownership and/or the assignment of the claim and to surrender to us any and all materials relevant to the enforcement of the claim.
    
10. In the event of payments made by bank draft or check, settlement of our claim with respect to reservation of ownership will be deemed to have occurred only once the draft or checks have been honoured.
     
11. If the reserved goods are sold in combination with other goods, the assignment of the claim arising from resale will be valid only in the amount of our invoice value of the reserved goods. In the event of sale of goods for which we have co-ownership rights, the assignment will be valid only in the amount of the co-ownership share.
     
12. If the customer is entitled to claims against third parties, in particular against insurers, due to damages, diminution, loss or the destruction of reserved goods or for some other reason, the customer hereby assigns those claims to us, with all ancillary rights, in the amount of our claim. We accept the assignment.
     
13. We undertake to release the securities held by us to the extent that their value exceeds the claims being secured, to the extent that they have not already been settled, by more than 20%.

(4) Remuneration, delay in payment, set-off

1. The prices we charge to corporate customers are stated as net prices, not counting turnover tax due in the amount legally valid as of the delivery date.

only valid for Coface Factoring customers:

1. (1a) The prices we charge to corporate customers are stated as net prices, not counting turnover tax due in the amount legally valid as of the delivery date. All payments are to be effected with the effect of discharging the debt and exclusively to the bank of Allgemeinen Kredit Coface Finanz GmbH, Isaac-Fulda-Allee 7, 55124 Mainz, to which we have assigned our present and future claims arising from business dealings. We have also transferred to this institution that of our property that is under reservation of title.
    
2. If cost factors change substantially (in particular, salary, material, energy, costs based on legal regulations), we are entitled to adjust the prices charged to corporate customers accordingly.
    
3. All prices are calculated ex warehouse and do not include ancillary costs, in particular freight rates, packaging or insurance. We will charge for packaging at cost.
    
4. Reimbursement for freight charges will be charged only according to freight rates.
    
5. The customer is obliged to pay the purchase price in full within 30 days after receipt of the goods. After expiration of this period the customer is in arrears.
    
6. In the event of payment of the purchase price within 8 days of delivery, the customer is entitled to take a 2% discount.
    
7. The date on which we have access to the amount in question will be deemed the date of receipt of payment.

only valid for Coface Factoring customers:

7. (7a) The date on which Coface Finanz GmbH (see $ 4. 1) access to the amount in question will be deemed the date of receipt of payment.
    
8. If, for whatever reason, a delivery declared to be ready for shipment or call order is not accepted by the customer directly upon notice, the delivery date will be deemed the date of receipt of the notification of readiness for shipment by the customer and will serve as the record date for the issue of an invoice and for payment periods.
    
9. If the purchaser is in arrears with any payment obligations to us, all existing claims will become due immediately. Over the period of delay, corporate customers must pay interest on the money owed of 8% above the basic interest. This does not cause the enforcement of claims for other damages to be excluded.
    
10. In the case of corporate customers, the customer has a right to setting-off, to enforcement of a right of retention or to enforcement of the rights arising from § 438 (4) sentences 2 and 5 BGB only in such cases where his counterclaims have been legally ascertained or are undisputed.

5. Assignment

1. We are entitled to assign the claims from our business dealings.

6. Provision of security

1. If, after issuing the order confirmation, we become aware of grounds justifying the belief that the financial situation of the customer is worse than was originally believed, we are entitled to request provision of security and to do so irrespective of the terms of payment stipulated in the order confirmation.

7. Passing of risk, sales involving carriage of goods

1. In the case of corporate customers, the risks of the accidental destruction and accidental deterioration of the goods transfers to the purchaser upon the transfer and in the case of sales involving carriage of goods, when the goods are handed over to the shipper, carrier or other person or establishment designated for the shipment. This applies even in the event of freight-paid delivery.
    
2. This transfer will not be affected by the fact that the customer does not accept it on time.

8. Warranty

1. The existence of a defect must be determined according to § 434 (1) sentence 1 BGB. We are not responsible for defects or damages that occur due to improper installation or operation or improper maintenance of our products. The same applies to defects or damages that occur because our products have been used in conjunction with other technical equipment that does not reflect the standards of quality normal in Germany.
    
2. In the case of corporate customers, public utterances, praise or advertising statements on our part or on the part of the manufacturer do not represent statements on the nature of the goods in the terms of the contract.
    
3. In the case of corporate customers, the customer must inform us in writing of defects within 8 days - immediately in the case of obvious defects - of receipt of goods; otherwise the goods will be deemed approved and the enforcement of warrantee claims will be excluded.
    
4. Sending out notice within the prescribed time will suffice for compliance with the period for notification of defect. The full onus of proof for any and all qualifications for claims falls on the corporate customer, in particular the existence of a defect, the date the defect is ascertained and the timely issue of the notice of defect.
    
5. In the case of corporate customers, we shall comply with our warranty for defects in the goods initially through rectification of defects or through consignment of replacement (subsequent performance), at our discretion.
    
6. If we comply with our warranty through rectification of defects, we are entitled to three attempts at rectification of defects with respect to corporate customers.
    
7. If subsequent performance fails, the customer can in principle request lowering of the compensation (reduction) or rescission of the contract (revocation). In the case of only insignificant lack of conformity with the contract, in particular that of only insignificant defects, the customer is not entitled to said right of revocation.
    
8. If we are obliged to provide subsequent performance, we shall bear the costs within the meaning of § 439 (2) BGB up to the amount of the order value at the maximum.
    
9. If the customer opts for rescission of the contract due to a deficiency in title or material defect after the failure of subsequent performance, he will not be entitled to any claim for damages for the defect in addition to that.
    
10. For corporate customers, the limitation of action in respect of claim for defect is the period of one year from the time the goods are sent out for delivery in the cases of §§ 438 (1), number 2 and 634a (1), number 2 BGB . This does not apply if we can be charged with fraudulent intent or gross negligence. Furthermore, this does not apply to claims on the part of the customer in respect of violation of life, body or health. The obligation in respect of timely notification of defect as per subsection 1 of this section remains unaffected.
     
11. As to the rest, the limitation of action in respect of claim for defect is the period of one year from the time the goods are sent out for delivery for corporate customers. This does not apply if we can be charged with fraudulent intent or gross negligence. Furthermore, this does not apply to claims on the part of the customer in respect of loss of life, or injury to body or health. The obligation in respect of timely notification of defect as per subsection 1 of this section remains unaffected.
     
12. If the customer receives defective instructions for assembly, we are obliged solely to deliver defect-free instructions for assembly and then only in the event that the defect in the instructions for assembly conflicts with the proper assembly.
     
13. The customer does not receive any guarantees in the legal sense from us.

9. Limitations on liability

1. In the event of slight degrees of negligence our liability - irrespective of legal grounds thereof aside from the arrangement in subsection 3 of this provision - is limited to damages that are foreseeable, typical for contracts and direct in respect of the type of goods. This applies even to slight degrees of negligence in respect to breach of obligations on the part of our legal agent or vicarious agents.
    
2. In respect of corporate customers, we are not liable - irrespective of legal grounds thereof aside from the arrangement in subsection 3 of this section - in the event of slight degrees of negligence in respect of immaterial contractual obligations.
    
3. The limitations on liability set out in subsections 1 and 2 of this section do not apply in the case of claims on the part of the customer arising from product liability. They also do not apply to claims on the part of the customer in respect of loss of life, or injury to body or health.

10. Return of goods

1. If we consent to return of goods, the customer must provide said goods to us with freight paid and in perfect condition. Storage materials will be taken back after deduction of at least 15% handling costs. Installation tools, provided that they are returned freight-prepaid and in perfect condition, will be credited at 80%. Objects manufactured to customer's specifications are not returnable.

11. Concluding provisions

1. (1a) German law applies exclusively, in particular the Civil Code and the German Commercial Code (Handelsgesetzbuch - HGB), to the exclusion of the UN law on the sale of goods. Jurisdiction shall be that of the official seat of our company.

only valid for Coface Factoring customers:

1. (1a) German law applies exclusively, in particular the Civil Code and the German Commercial Code (Handelsgesetzbuch - HGB), to the exclusion of the UN law on the sale of goods. Jurisdiction shall be that of the official seat of our company or Mainz.
    
2. Amendments or additions to the contract concluded between us and the customer must be made in writing, whereby transmission by fax is sufficient. This applies even to the abandonment of the requirement for written form.
    
3. If the customer is a merchant, legal person under public law or a public special fund, the place of performance and exclusive jurisdiction for disputes arising from this contract is that of the official seat of our company. The same applies when the customer has no general jurisdiction in Germany or if his official place of residence or place of normal residence is not known at the time a complaint is filed.
    
4. If individual provisions of the contract with the customer, including these General Conditions of Sale and Delivery, are held fully or partially invalid, this will not affect the validity of the other provisions. The invalid arrangement is to be replaced by an arrangement that comes as close as possible to commercial intention of the invalid arrangement in a legally valid form. The same applies if the contract should prove to be incomplete.