I. Validity, conclusion of contract
(1) Unless expressly agreed otherwise, the Terms and Conditions below shall apply to all contracts, deliveries and other services (hereinafter referred to as “service” or “services”) in commercial transactions of TTS Trainings Transfers Services GmbH (hereinafter referred to as “TTS”) with employers, legal entities under public law and separate assets under public law as defined by § 310 para. 1 clause 1 of the Federal Law Gazette (hereinafter referred to as “Customer”). These Terms and Conditions shall also apply to all future contracts with the Customer.
(2) The Customer’s Terms and Conditions shall only apply insofar as TTS has expressly agreed to them in writing. In particular, Customer conditions that conflict with or deviate from these Terms and Conditions, especially conditions of purchase, shall not become provisions of the contract, unless TTS agrees to these expressly and in writing. “Written” in the sense of the above provision and in the sense of these overall Terms and Conditions, of order confirmation or other agreements between TTS and the Customer, is a text format, so that E-mail traffic in particular is sufficient.
(3) All quotes from TTS are provisional and not binding, unless they are expressly marked by TTS in writing to the Customer as binding. They merely represent a request for submission of an offer by the Customer. A contract shall only come into existence via the written order confirmation from TTS or tacitly by the execution of the order and is based solely on the content of the order confirmation and these Terms and Conditions.
(4) TTS reserves all ownership, copyright and proprietary rights without restriction to cost estimates, illustrations, drawings and other documents, including in electronic format. These documents may be made accessible to third parties only after prior consent by TTS and are, if the order is not placed with TTS, to be returned to the latter immediately upon request.
II. Costs and Payment Conditions
(1) Unless expressly agreed otherwise, prices for goods of any kind supplied by TTS (consumables, replacement or spare parts etc.) are understood to be “delivery ex works” (EXW, Incoterms 2010, 7th revision) excluding packaging and insurance plus the relevant applicable VAT. “Works” as defined by the Incoterms EXW is TTS’s supplier’s factory or TTS’s site in Pansdorf; the information given in the written confirmation from TTS shall be the deciding factor. The costs of transport and delivery to the place of use shall also be billed by TTS to the Customer, provided that the Customer commissions TTS in writing to carry out the transport and delivery of the goods to the place of use.
(2) If the TTS service consists of installation, assembly or repair work and if no flat sum is agreed, but unit prices for material and/or working hours, then in addition to the agreed remuneration the Customer shall bear all necessary ancillary costs, such as travel expenses, costs for the transport of the required tools and equipment and of personal luggage and accommodation allowances. The ancillary costs shall also include costs for ancillary services such as crane costs, which must be borne separately by the Customer. TTS will specify all foreseeable ancillary costs to the Customer in detail as part of the quotes and in the order confirmation. Travel times of staff from TTS to the place of deployment shall be counted as working time.
(3) Unless expressly agreed otherwise, invoices from TTS shall be immediately due for payment without deductions by the Customer upon receipt of the invoices. TTS shall be entitled at any time to request payments in advance. The day of payment shall be considered the day on which TTS can dispose of the invoice amount. If the payment date is not contractually agreed otherwise, the Customer shall be in default 14 calendar days after the invoice date without a reminder being required, and TTS shall be entitled to demand interest to the amount of 9 % annually above the relevant base interest rate of the ECB. The assertion of further damage caused by default shall remain unaffected.
(4) The Customer may only offset with such counter-claims as are undisputed, recognised by TTS or legally established. The mere silence of TTS regarding the assertion of such counter-claims shall not count as recognition. The Customer shall only be entitled to exercise a right of retention if their counter-claim is based on the same contractual relationship.
(5) TTS shall reserve the right to decline acceptance of checks and bills of exchange. Unless declined, cheques and bills of exchange shall only be accepted by TTS on account of performance. They shall only be valid as payment after redemption. Discount charges and other fees shall be at the expense of the Customer.
(6) The Customer must inform TTS of all circumstances which substantially and negatively affect their creditworthiness, in particular delays in payment and insolvency of the Customer. If such negative circumstances are made known by the Customer or by other means to TTS, TTS shall be entitled at its option to request payments in advance or security deposits from the Customer for all existing contractual relationships with TTS. If the Customer does not comply with this request within a reasonable period, TTS shall be entitled to withdraw from the contract and to claim damages. § 650 f Federal Law Gazette shall remain unaffected.
(7) If the Customer does not take delivery of the contractually offered service within four months of the contract being concluded or if the service provided by TTS is not possible within four months for reasons not attributable to TTS, TTS shall be entitled to pass on to the Customer any increases in wage and material costs and manufacturer’s or preliminary supplier’s price increases that have occurred in the meantime. If execution of the service is contractually envisaged later than four months after conclusion of the contract and increases in wage and material costs and manufacturer’s or preliminary supplier’s price increases occur by the time of performance, TTS shall likewise be entitled to pass on the increases to the Customer.
III. Time of supply and service
(1) Supply and service times that are not expressly agreed as binding or unilaterally confirmed by TTS in writing, are solely non-binding information. The compliance with times for services requires that the Customer has carried out the obligations required for carrying out the service, in particular the obligation to cooperate incumbent upon him in accordance with section V, such as the timely receipt of all documents to be delivered by the Customer to TTS, required approvals and releases, especially of plans. If these prerequisites are not met in time, then the times shall be extended appropriately, this not applying if TTS is to blame for the delay.
(2) If the non-compliance with dates can be traced back to force majeure, e.g. bad weather and weather conditions that prevent execution in due time, mobilisation, war, unrest, scarcity of raw materials, interventions by state authorities or to similar events, e.g. strike and lockout, the dates shall be extended appropriately.
(3) If the temporal sequence of the service is delayed at the Customer’s request, the additional expenses resulting from this must be recompensed to TTS.
IV. Supply, transfer of risk
(1) Unless expressly agreed otherwise, delivery of goods is “ex works” (EXW, Incoterms 2010, 7th revision).
(2) Risk with regard to the services transfers to the Customer as follows
a) when supplying the goods without carrying out of the installation, assembly or repair as per “delivery ex works (EXW, Incoterms 2010 7th revision)”, if the goods have been made available by TTS for collection from the supplier’s works or warehouse; this transfer of risk ex works/ex stock applies regardless of whether the transportation of the goods is from the place of performance or who bears the freight costs;
b) for services with installation, assembly or repair, upon acceptance.
(3) If the carrying out of installation, assembly or repair is delayed due to reasons attributable to the Customer or the Customer comes into default of acceptance for other reasons, then risk transfers to the Customer at the start of the default of acceptance.
(4) Partial deliveries and partial services by TTS shall be permitted as far as they are reasonable for the Customer.
V. Obligation to cooperate during installation, assembly and repair works
The following provisions shall apply for services with installation, assembly or repair work:
(1) The Customer must ensure in good time and at their expense, that– if required – external trades are provided, energy and water are provided and space for the site facilities and the site depot are available to TTS. The Customer must inform the TTS site supervisor of existing special safety regulations or other specifics. TTS will then produce a confirmation E-mail concerning special safety regulations or other local specifics. The contents of this confirmation E-mail shall have mandatory application for the Customer and TTS.
(2) The Customer must, without being asked, make available to TTS in good time before the start of the work the necessary documents, approvals and releases, in particular plans, and any necessary details on the location of power, gas and water lines. Likewise preliminary work not to be carried out by TTS must be so far advanced before the start of the work that the work by TTS can be started in compliance with the agreement and carried out without interruption. Transport routes and the installation or assembly place must in particular be cleared of snow and ice, levelled and fixed.
(3) Employees of TTS and their agents shall be granted and enabled access to the wind energy plant at all times. For contractually compliant delivery the Customer shall give TTS all necessary information on the wind energy plant concerned. The Customer shall declare their agreement to TTS and its agents possessing a key for the wind energy plant for the duration of the work on the wind energy plant and in good time before the start of the work.
(4) If the Customer fails to meet or does not meet in good time their obligations to cooperate, then TTS shall be entitled to request compensation for the expenditure and damages caused by the incurred delays. In particular the Customer shall have to bear to a reasonable extent the costs for waiting times and additionally necessary travel expenses of TTS staff.
VI. Obligation to inspect and notify, acceptance
(1) For supply of the goods without carrying out of the installation, assembly or repair, the Customer shall be obliged to carefully examine the goods immediately after delivery and, if a defect is revealed, to immediately notify TTS of this in accordance with the regulation of § 377 Commercial Code. Otherwise the delivery shall be considered to have been approved. The notification of apparent defects shall only be timely if it arrives in written form at TTS within a period of 10 days counted from receipt of the goods. The notification of non-apparent defects shall be timely provided that it arrives in written form at TTS within a period of 10 days counted from detection by the Customer. The provisions in this section (1) shall also then apply if the Customer himself/herself is not a trader as defined by the commercial law.
(2) For services with installation, assembly or repair, the Customer shall be obliged to acceptance of the service as soon as its completion has been notified to them by TTS or an explicitly contractually envisaged trial operation has successfully taken place. TTS shall with reasonable notice nominate to the Customer a date for the acceptance of the services. If the client fails to reply concerning an acceptance date or does not appear at the acceptance, the acceptance shall consider to have been granted. If the Customer refuses acceptance, they must justify this refusal in writing with reference to specific defects in the services. The Customer may not refuse acceptance due to immaterial defects.
(3) Particularly to be accepted at the request of TTS are
a) self-contained parts of the service,
b) other parts of the service if further execution makes inspection and detection no longer possible.
(4) Upon acceptance the liability for defects of TTS for identifiable defects shall cease to apply, unless the Customer has reserved the assertion of a specific defect at the time of acceptance.
VII. Warranty claims, statute of limitations
(1) If the service by TTS shows a defect at the time of delivery without installation, assembly or repair being carried out, otherwise at the time of acceptance, then TTS shall be obliged at its discretion to resolve the defect or carry out the service again (supplementary performance), unless due to statutory regulations TTS is entitled to refuse supplementary performance. The Customer must allow TTS a reasonable period for supplementary performance. During the supplementary performance the reduction in the price, withdrawal from the contract or self-performance by the Customer shall be excluded. Reworking shall be considered as failed upon the second unsuccessful attempt. If the supplementary performance has failed, the Customer may assert further statutory rights.
(2) Warranty claims by the Customer shall not exist for natural wear and tear or for operational disruptions or damage to the wind energy plant which are due to defective or improper handling, disregard of the operating manual or special external influences. If unprofessional repair work or other modifications to the wind energy plant are undertaken by the Customer or by third parties, no warranty claims shall exist against TTS for these and any ensuing consequences. If the Customer requests work on their wind energy plant that does not correspond to the rules of technology, TTS shall only carry out this work if the Customer confirms in writing to TTS having received notification from TTS concerning the irregular execution and clears TTS of all warranty claims in respect of this irregular work and any consequential damage to their wind energy plant.
(3) Warranty claims by the Customer shall become statute-barred a) for the supply of goods without carrying out installation, assembly or repair, 12 months as from delivery and b) for services with installation, assembly or repair, as from acceptance. This shall also apply – except for personal injury (violation of life, body and health) or malicious or grossly negligent dereliction of duty – for claims for compensation due to material defects; liability under section VIII shall remain unaffected.
VIII. Liability
(1) TTS shall be liable for damage – regardless of legal basis – in the cases of intentional malice and gross negligence.
(2) In addition TTS shall be liable for damage which it causes via simple negligent breach of such contractual obligations as whose violation jeopardise the achievement of the aim of the contract, or for the breach of obligations whose fulfilment enables the proper execution of the contract in the first place and on whose compliance the Customer regularly relies and may trust. However in this case TTS shall only be liable as far as the damage is typically associated with the contract and foreseeable. The following section 3 notwithstanding, TTS shall not be liable for simple negligent violation of other obligations other than those referred to in the above clauses.
(3) The above limitations of liability in favour of TTS shall not apply in cases of liability under the Product Liability Act, for violation of life, body or health, nor if and to the extent to which TTS has fraudulently concealed defects. Limitations of liability shall further not apply if TTS has given a quality and/or service life guarantee as part of the warranty. However TTS shall then only be liable for damage which is based on the violation of a given guarantee if the risk of such damage is clearly covered by the given guarantee.
(4) If under this the liability of TTS is excluded or limited, this shall also apply to the personal liability of its representatives, employees and vicarious agents.
IX. Reservation of proprietary rights
(1) TTS reserves the title to the objects of the services (reserved goods) until complete payment of the remuneration. For reserved goods which the Customer orders as part of an ongoing business relationship, TTS reserves ownership until all claims against the Customer from the relationship, including future claims arising and settlement claims from current account, have been settled.
(2) The Customer shall be entitled to dispose of reserved goods in the ordinary course of business provided that they are not in default of payment. The Customer shall be obliged, as long as the title to the reserved goods has not yet transferred to them, to use the reserved goods with care and only for proper use. To this extent they shall also be obliged to adequately insure the reserved goods at their own expense against theft, fire or water damage on a new-for-old basis. Pledges or collateral assignments shall be impermissible. Processing or transformation of the reserved goods shall always be carried out for TTS as the manufacturer. If the reserved goods are processed with other objects not belonging to TTS, TTS shall acquire the joint title to the new object in proportion to the value of the reserved goods (total gross price) to the other processed objects at the time of processing. If the (joint) ownership of TTS lapses due to combination or mixing, the contracting parties shall now immediately agree that the Customer’s (joint) ownership transfers to TTS pro rata. The Customer shall safeguard the (joint) property of TTS free of charge.
(3) Upon conclusion of the contract the Customer shall immediately assign to TTS as security all claims arising from the resale or any other legal ground (insurance, tort) in respect of the reserved goods (including the balance demands), and irrespective of whether the Customer has resold the reserved goods before or after processing); TTS shall accept the assignment. The Customer shall remain entitled until revocation to collect this claim for their account on their own behalf even after the assignment. The right of TTS to collect this claim themselves shall remain unaffected by this. TTS shall however undertake not to collect the claim as long as the Customer meets their payment obligations, does not default and in particular no application to open insolvency proceedings against the Customer’s assets has been made, or there is no cessation of their payments. Otherwise TTS may request that the Customer notify TTS of the assigned claim and its debtor, provide all information necessary for collection, issue the related documents and inform the third-party debtors of the assignment. TTS shall undertake to release at the request of the Customer the securities due to it insofar as the realisable value of the securities of TTS exceeds the claim to be secured by more than 10 %. The selection of the securities to be released is the responsibility of TTS.
(4) The Customer must immediately inform TTS in writing of all seizures by third parties, in particular enforcement measures and other impairments of their (joint) property. The Customer must reimburse TTS for all damage and expenses incurred by violation of this obligation and by intervention measures required against seizures by third parties.
(5) In the event of behaviour by the Customer contrary to the terms of the contract – in particular default of payment – TTS shall be entitled, after a prior and reasonable fixing of a time limit, to withdraw from the contract and to require the return of the reserved goods and/or if necessary the assignment of the Customer’s claims for return against third parties. The taking back of the reserved goods by TTS constitutes a withdrawal from the contract, as is always seizure of the reserved goods by TTS. TTS shall be authorised after taking back the reserved goods to use them; it will offset the utilisation proceeds against the liabilities of the Customer, minus appropriate utilisation costs.
(6) TTS shall undertake to release at the request of the Customer the securities owing to it insofar as the value of the securities exceeds the claims of TTS to be secured by more than 20%.
X. Data protection
(1) TTS collects, stores and uses personal data of the Customer for the settlement and execution of concluded contracts; this use of personal data also includes transfer of Customer data to our suppliers who are commissioned with the settlement and execution of the contract. Transfer of Customer data to other third parties than our relevant suppliers is excluded unless we are obliged to do so by statutory or official requirements. With regard to the collection, storage and processing of their personal data by us the Customer has the right of appeal to the competent data protection regulatory authority.
(2) Upon their order with TTS the Customer preventively and explicitly declares their consent to the collection, storage and processing of their personal data by TTS for the settlement and execution of the concluded contracts.
(3) The Customer has the right to revoke their consent to TTS at any time without the legality of the processing which based on the agreement took place up to revocation being affected.
(4) If the Customer does not grant or revokes their consent to the collection, storage and processing of their personal data by us, we may regard it as impossible in individual cases to settle and execute the concluded contracts with the Customer. We therefore reserve the right to withdraw from the contract after an appropriate renewed notice to the Customer in the event that consent is not given or in the event of revocation of the consent.
(5) The data will moreover by used by TTS for the further maintenance of the long-term business relationship with the Customer if the latter does not object to its use in accordance with Art. 21 section 2 and 3 GDPR. Upon final termination by the Customer of the business relationship we will delete the Customer’s stored personal data unless we are obliged by statutory or official requirements to continue to retain and/or store it. As the subject of the personal data stored by us the Customer has in this regard the rights to be informed under Art. 15 GDPR, a right to rectification or deletion under the requirements of Art. 16, 17 GDPR, a right to restriction under the requirements of Art. 18 GDPR, a right of objection under the requirements of Art. 21 GDPR and a right to data portability under Art. 20 GDPR.
XI. Applicable law, place of fulfilment, place of jurisdiction and partial nullity
(1) German law shall apply exclusively to all legal relationships between TTS and the Customer excluding the provisions of the United Nations convention of 11/04/1980 on the international purchase of goods (CISG).
(2) The place of fulfilment for the services of TTS and sole place of jurisdiction for all disputes arising from the contractual relationship is Pansdorf, provided that the Customer is a trader, legal entity under public law or special fund under public law.
(3) In the event that individual or multiple provisions of this contract should be or become ineffective in whole or in part, the remaining provisions of the contract shall thereby remain unaffected. The same shall also apply in the event of a gap or omission.
TTS Renewable GmbH
Issue 09/2018
