General Terms and Conditions
of New Wave Aquarium Concepts | Florian Schuran e.K. Rurtalstraße 33, 41849 Wassenberg
These General Terms and Conditions (hereinater referred to as "GTC") apply to all contracts concluded between you (customer) and us (New Wave Aquarium Concepts | Florian Schuran e.K. Rurtalstraße 33, 41849 Wassenberg) within the meaning of Section 2.2 of these GTC.
We do not agree to any deviating terms and conditions of the customer.
Orders and Conclusion of Contract
We offer our customers the manufacture, delivery and installation of aquariums, tanks, containers and other items as well as customised services in this context (hereinafter collectively referred to as "Contractual Items").
We initially provide our customers with non-binding offers for our services. The contracts between the customer and us are concluded as follows: With the signing of our offer by the customer, the customer submits a binding offer to conclude the contract (contract offer). We are not obliged to accept this contract offer. In the event that we accept this contractual offer, this is done by confirming the offer. A binding contract is concluded upon receipt of the confirmation.
Subject Matter of the Contract and Place of Delivery
The scope of the services to be rendered by us is specified in the order confirmation.
We provide our services at the agreed place of delivery in accordance with the order confirmation.
The payment set forth in the cost estimates includes the services provided for in the respective cost estimate in the calculated expenditure as a flat rate compensation in the ordinary course of performance. If there is additional expenditure for which we are solely responsible, the customer shall not be charged for this additional expenditure. In the event of additional expenditure for which the customer is responsible, we shall be entitled to increase the agreed remuneration in accordance with the additional expenditure. Postponements of the agreed deadlines are considered the same as additional expenditure.
Unless expressly agreed otherwise in our non-binding offer, a prepayment of 50% of the remuneration is due for payment when the order is placed. If we have already provided partial services in accordance with the contract, we shall be entitled in accordance with § 632a BGB to demand instalment payments from the customer in the amount of the value of the service provided by us. This applies in particular after production and delivery within the meaning of Section 2.1 of these GTC. Unless otherwise agreed, the instalment payment shall be due for payment within 14 days of the issue of the instalment invoice. Otherwise, the remaining payment for the agreed services shall be payable upon acceptance and issuance of the final invoice. The payment is due immediately and without deduction after acceptance and receipt of the final invoice (due date). If we have separately agreed individual advance payments with customers who are not consumers, the separately agreed due date shall apply in this respect.
If the payment is fixed in money and payment is not made to us on the due date, we shall be entitled to charge interest on the outstanding amount in accordance with the following, unless the payment has been deferred:
- If there is no mutual commercial transaction, the interest rate shall be four of one hundred for the year
- If there is a mutual commercial transaction, the interest rate is five of one hundred for the year.
If the customer defaults on payment of the fee, interest shall be charged on the payment owed in accordance with the following:
- If the customer is a consumer, the interest rate shall be five percentage points above the respective base interest rate in accordance with § 247 BGB.
- If a consumer is not involved, the interest rate shall be nine percentage points above the base interest rate according to § 247 BGB.
Changes in services
The customer may demand changes to the content and scope of the services. This also applies to parts already provided and delivered.
If the changes are not only insignificant, we shall determine the time delays and additional costs incurred as a result of the requested changes and inform the customer and offer them without obligation. In all other respects, Section 2 of these GTC shall apply as appropriate.
Dates and alternative dates
The agreed deadlines are binding and must be kept.
If the customer is unable to keep an agreed appointment, he is obliged to inform us immediately. In this case, we shall agree an alternative date with the customer.
If we cannot provide our services and/or cannot provide them in full because the customer fails to meet one and/or more agreed deadlines and is therefore in default of acceptance, the following shall apply: The customer is obliged to compensate us for the additional expenses. These include, in particular, necessary transport and storage costs as well as remuneration for the use of labour.
The customer is authorised at any time to prove that we have incurred lower or no such expenses.
Cooperation and duties of the customer
We are only able to provide our services if the customer cooperates. The customer is duty bound to take all actions that are necessary for the provision of our service.
In particular, the customer is duty bound
- to provide us with all documents and information necessary for the provision of our service in a timely, correct and complete manner;
- to obtain and/or maintain all necessary official authorisations and/or approvals under civil law (e.g. from the WEG, from co-owners, lessors, etc.);
- to provide information at our request;
- to keep deadlines agreed with us;
- to take the necessary precautions that are essential for the provision of our services, in particular to ensure access to land, buildings, premises and technical building equipment, such as power supply and (waste) water supply, and to ensure sufficient parking spaces at the place of delivery.
If the customer fails to provide the necessary cooperation and/or fails to do so in due time and is consequently in default of acceptance, he shall pay us an appropriate compensation.
The customer is authorised at any time to prove that we have incurred lower or no such expenses.
The customer is duty bound to accept the work produced in accordance with the contract, unless acceptance is excluded due to the nature of the work. Acceptance cannot be refused due to insignificant defects. The customer may also not refuse acceptance if the customer has explicitly requested a service against our advice and a risk known to the customer has realised.
In the event of significant defects, the customer has the right to refuse acceptance until the discrepancies from the contractually agreed requirements that he has objected to have been eliminated.
The acceptance will be protocolled. The customer and we shall sign the protocol together. Any defects existing at the time of acceptance must be recorded in the protocol.
If the customer does not confirm acceptance, we have the right to set the customer a deadline of three weeks to confirm acceptance. After expiry of this period without result, acceptance is considered to have taken place unless the customer provides a written explanation of the reasons for the hindrance within the meaning of Section 8.1 (last sentence).
Reservation of ownership
All movable items delivered by us remain our property until payment has been made in whole. This applies in any case until movable items supplied by us become an integral part of a property.
The warranty for material defects and defects of legal title is based on the provisions of the German Civil Code (BGB).
We are liable for intentional or grossly negligent behaviour. In the event of simple negligence, we are only liable for damages arising from the breach of a significant contractual obligation (an obligation whose fulfilment is essential for proper performance and on whose fulfilment the contractual partner regularly relies and may rely); however, liability is limited to compensation for predictable, typically occurring damages.
The limitations of liability do not apply to damages resulting from injury to life, body or health, or insofar as we have intentionally concealed a defect or have assumed a guarantee or there are claims under the Product Liability Act.
The above limitations of liability also apply to the personal liability of our employees.
The customer is entitled to cancel the order at any time. The services we have provided up to this point must be paid for. If the customer takes advantage of this right of cancellation, we are entitled to demand 15% of the agreed payment as liquidated damages (a) if performance has not yet begun, and (ii) after performance has begun, 80% of the remaining agreed payment that is not to be invoiced in accordance with Section 12.1 Sentence 2.
The customer is entitled to prove that a loss of payment or a reduction in value has not occurred at all or is significantly lower than the flat rate specified in Section 12.1.
After cancellation, each party may request the other party to cooperate in determining the status of performance. The party that does not cooperate carries the burden of proof for the state of performance at the time of cancellation.
Offsetting, Right of Retention
The customer is only entitled to offset our claims against undisputed or legally established claims.
The customer is only entitled to exercise a right of retention if his counterclaim is based on this contract.
Intellectual Property Rights
We retain all intellectual property rights to our services, in particular to manufactured items, plans, records, concepts and models. Intellectual property rights include, in particular but not exclusively, copyrights, rights of use under copyright law and related property rights within the meaning of copyright law (including all stages of development).
Insofar as the respective contractual purpose requires this for the use of the respective aquariums, tanks, containers and other (purchased) items, we grant the customer a simple, temporally and spatially unlimited and transferable right of use. This right does not include the right to any modification.
Any side agreements, amendments and additions relating to the respective subject matter of the contract must be made in writing, unless a stricter form is required by law. This also applies to the cancellation of this written form requirement.
If the customer is an entrepreneur, the assertion of a right of retention or any other right to refuse performance by the customer is excluded; this does not apply if the counterclaim is based on the same contractual relationship and the counterclaim has been legally established or is undisputed.
Our contractual relationship with the customer is subject to the law of the Federal Republic of Germany to the exclusion of its conflict of law rules and with the exception of the UN Convention on Contracts for the International Sale of Goods (CISG).
The place of jurisdiction for all disputes between us and the customer is Düsseldorf. This does not apply if the customer is a consumer.