§ 1 – General
1. these general trading conditions (AGB) apply to all consultation, offers, supplies, achievements and contracts of the Nautilus water systems GmbH & CO kg. Deviating agreements and trading conditions of our contracting partner (customer) are only effective, if the Nautilus Wassersysteme GmbH & Co. KG confirmed their validity expressly in writing. Oral collateral agreements shall not apply unless they are confirmed in writing.
2. the AGB’s of the Nautilus water systems GmbH & CO. kg are also then effective, if we do not refer expressly to it – in the context of a current business relation – with later contracts.
§ 2 – Offer and conclusion of contract
Unless otherwise expressly stipulated in writing, our offers are subject to change without notice. Contracts are therefore only concluded when our written order confirmation is available or the goods are delivered.
2. our written order confirmation shall be decisive for the content of the contract, if such a confirmation is issued.
3. our offers include delivery ex works without packaging; unless otherwise expressly stipulated, transport and packaging shall be remunerated separately.
§ 3 – Time of performance
1. delivery or other performance times are – unless expressly agreed as binding – to be regarded as non-binding.
2. if a period of time is determined for the delivery or service, this period of time shall begin – unless otherwise agreed – at the time of our written order confirmation; in the absence of such, with the processing of the order in our company.
3. our obligation to deliver shall be suspended as long as the customer is in default with his payment obligations.
4. as far as Nautilus Wassersysteme GmbH & Co. KG the customer because of a delay to the replacement of the damage caused by delay are obligated, this amounts to for each full week of the delay 0.5% – in the whole at the most 5% – of the order value of the total supply. The customer may only claim higher damages against appropriate evidence and only if the actual amount of damages is more than 25% higher than the liquidated damages.
§ 4 – Force majeure
1. if the achievement of the achievement becomes the Nautilus Wassersysteme GmbH & Co. KG due to higher force completely or partly temporarily impossible or substantially impedes, then an agreed upon delivery time extends by the duration of this achievement obstacle. The same shall apply to a deadline set by the customer for the performance of the service, in particular for grace periods pursuant to §§ 3 and 4 of the German Civil Code. §§ 281 para. 1, 323 para. 2 BGB.
2. the customer shall not be entitled to withdraw from the contract or to claim damages before the expiry of the delivery period or performance period extended in accordance with No. 1 above. The exclusion of the right of withdrawal ends if the impediment to performance lasts for more than three months. Furthermore, it does not occur if the customer according to. § 323 para. 2 BGB is entitled to withdraw from the contract without setting a grace period. If the impediment to performance lasts for more than three months, we shall also be entitled to withdraw from the contract.
3. events of force majeure shall include in particular war, warlike conditions, mobilization, import and export bans and blockade. Equal to force majeure are: transport hindrances, operational disruptions, delays in the delivery of raw materials, strikes, lockouts and other labor disputes as well as other unforeseeable, extraordinary and non-culpable circumstances.
§ 5 – Transfer of risk
(1) The risk of accidental loss and accidental deterioration shall pass to the customer upon handover of the sold item to the carrier; this shall also apply if the delivery is made free destination.
2. persons who sign the delivery bill at the time of collection or at the unloading point shall be deemed to be authorized by us to accept and confirm receipt of the goods.
§ 6 – Quality of the goods
Insofar as reference is made in offers, order confirmations or other written documents to descriptions of goods, in particular brochures, leaflets or processing instructions, or these are otherwise included in a contract, this does not constitute a guarantee for a specific quality or durability of the goods described. The same applies to descriptions in relevant technical standards.
§ 7 – Examination of the goods
(1) If the customer is a merchant, he shall give notice of defect pursuant to Art. § 377 HGB (German Commercial Code) at the latest one week after delivery. The notification shall specify the type of goods, the type of deviation or defect, the delivery date and the delivery note number. Hidden defects must be reported to us in writing without delay, at the latest within one week of their discovery.
The customer may not process or install goods that are the subject of a complaint or are recognizably defective. If he violates this obligation, we shall not be liable for any damage resulting from the processing or installation. Furthermore, in this case the customer shall bear the additional costs incurred in remedying the defect due to processing or installation and reimburse us if necessary.
§ 8 – Rights of the customer in case of defects
1. the rights of the customer in the event of defects shall be governed by the statutory provisions. If the customer is not a consumer (§ 13 BGB), however, the provisions of the following nos. 2 – 11 shall apply restrictively.
2. entitlement to an inspection in case of defects requires a fully completed complaint protocol, as well as proof of direct purchase such as order, delivery bill or invoice number.
3. a defect shall not exist in the case of deviations or modifications which are within the scope of the relevant technical standards. The same shall apply to customary, technically unavoidable deviations, insofar as the usability of the goods for the contractually stipulated use is not impaired.
(4) If a specific quality of the goods has been agreed, a deviation therefrom shall only constitute an insignificant defect if the suitability of the goods for the contractually intended use is not or only insignificantly impaired. In this case, claims for damages and withdrawal from the contract due to the defect are excluded.
(5) The customer’s claim to subsequent performance shall be limited to rectification (repair) of the goods if this is reasonable for the customer, in particular if it is capable of eliminating the defect in the same way as a new delivery of the goods.
(6) The customer may only invoke failure of subsequent performance if at least two attempts at subsequent performance have been unsuccessful and at least three weeks have elapsed since the notice of defect was given.
7. a deadline set by the customer for subsequent performance is unreasonable if it is less than 3 weeks – calculated from the date of receipt of the grace period by us. Additional deadlines must be set in writing.
8. claims for damages, regardless of the legal basis, are excluded. Unless the damage was caused by intent or gross negligence or liability is mandatory by law. This does not apply to damages resulting from injury to life, body or health.
9. with the exception of the claims specified in § 478 BGB, all rights of the customer due to the defect shall become time-barred within 1 year from delivery. This shall not apply in cases of intent and gross negligence or to claims for damages due to injury to life, limb or health. Furthermore, it shall not apply insofar as goods delivered or assembled by us are used for a building. In the cases of sentences 2 and 3 the statutory period of limitation shall remain in force
10. a defect shall be deemed to exist if goods other than those owed or a quantity other than those owed are delivered.
11. replaced parts become property of Nautilus Wassersysteme GmbH & Co KG.
§ 9 – Warranty conditions for containers or components
1. all those parts shall be repaired free of charge or replaced free of defects at our discretion which prove to be unusable or significantly impaired in their usability as a result of a circumstance occurring prior to the transfer of risk, in particular due to defective design, defective material or defective workmanship. We must be notified immediately in writing of the discovery of such defects. Replaced parts become our property
2. the warranty ends with the expiry of 12 months after the transfer of risk of the delivery item to the customer.
3. no warranty is given for damages caused by the following reasons:
- Unsuitable or improper use.
- Improper handling
- Non-compliance with installation instructions
- Faulty assembly or commissioning by the purchaser or third parties.
- Natural wear and tear.
- Incorrect or negligent handling.
4. no warranty is assumed in case of non-observance of safety instructions or exceeding of the permissible load values.
(5) The customer shall give us the necessary time and opportunity to carry out all repairs and replacement deliveries that we deem necessary after consultation with us, otherwise we shall be released from liability for defects. Only in urgent cases of danger to operational safety or to prevent disproportionately large damage, in which case we must be notified immediately, shall the customer have the right to remedy the defect himself or have it remedied by third parties and to demand reimbursement of the necessary costs from us.
6. if the customer or a third party carries out improper modifications or repair work on the delivery item without our prior consent, our liability for the resulting consequences shall be cancelled.
7. the repair work covered by the warranty also includes testing, measuring and adjustment work (in accordance with the manufacturer’s working time guidelines) if it is necessary in connection with the repair of a warranty defect, but not maintenance, inspection, cleaning or care work prescribed or recommended by the manufacturer. The warranty does not include the assumption of costs for direct or indirect consequential damage (e.g. parking charges, freight costs, disposal costs, compensation for lost use, consequential damage to non-warranted components).
8. no compensation for material and labor costs will be provided for wear parts such as:
- Seals
- Pumps
- Filter
- Filter sieves
- Hoses,
§ 10 – Limitation of liability
1. for the injury of substantial contract obligations the Nautilus Wassersysteme GmbH & Co. kg is responsible in the cases of simple negligence only up to the height of the average typically occurring foreseeable damage. This does not apply to damages resulting from injury to life, body or health.
2. for the injury of not substantial contract obligations the Nautilus Wassersysteme GmbH & Co. kg is responsible only, if the obligation injury is based on resolution or rough negligence. This does not apply to damages resulting from injury to life, body or health.
3. nos. 1 and 2 above shall apply mutatis mutandis to claims for damages other than contractual claims, in particular claims in tort, with the exception of claims under sections 1 and 4 of the Product Liability Act.
§ 11 – Prices
Prices always apply plus applicable VAT at the time of invoicing, unless this is shown separately.
The Nautilus Wassersysteme GmbH & Co. KG is entitled to adapt the respective price list maximally once per quarter to changing market conditions, with substantial changes in the procurement costs, changes of the value added tax or the procurement prices. In the event of price increases that significantly exceed the regular increase in the cost of living, the customer has the right to terminate the contract within 2 weeks. This is communicated to him by the Nautilus Wassersysteme GmbH & Co. KG in these cases in text form.
§ 12 – Delivery conditions
1. shipment of spare parts
In most cases, spare parts are available from our authorized dealers or, in exceptional cases, from the factory.
The shipment is usually made by parcel service. The cost of shipping must be paid by the customer. Defective components from complaints must be returned free of charge to Nautilus Wassersysteme GmbH & Co KG within 14 days. After inspection of the components by our pre-supplier, a credit note will be issued if the complaint is accepted.
3. freight and transport costs for sending and returning the components must be borne by the customer/buyer.
§ 13 – Payment
1. the calculations of the Nautilus water systems GmbH & CO kg are payable within 14 days after rendering of invoice and without departure. Cash discount will be granted only in case of special agreement. Discount periods are then calculated from the invoice date. Only the value of the goods without freight and unloading costs is eligible for cash discount.
2. alternatively, the buyer can give Nautilus Wassersysteme GmbH & Co KG a SEPA mandate. The period for advance notification (pre-notification) for the SEPA core direct debit scheme is 6 days for initial and one-off direct debits and 3 days for subsequent direct debits. In the SEPA corporate direct debit scheme, the advance notice (pre-notification) is shortened to 2 days. The buyer assures to provide for the coverage of the account. Costs, which develop due to Nichteinlösung or Rückbuchung of the debit note, go debited to the buyer, as long as the Nichteinlösung or the Rückbuchung was not caused by Nautilus Wassersysteme GmbH & Co KG.
3. with delay of payment of the customer Nautilus Wassersysteme GmbH & Co. KG is entitled after our choice to make further supplies and/or achievements dependent on pre-payments, securities or cash on delivery (and also if Nautilus Wassersysteme GmbH & Co. KG granted supplier credit), to require payment of damages instead of the achievement or to withdraw from the contract. If the payment deadline is exceeded, standard bank interest will be charged on the invoice amount. Further claims for interest and damages shall remain unaffected. Furthermore, the statutory regulations concerning default of payment shall apply.
If partial payments have been agreed and the customer is more than 14 days in arrears with an installment, the entire purchase price shall become due immediately.
5. with threatening insolvency or a substantial degradation of the financial circumstances of the customer Nautilus Wassersysteme GmbH & Co. KG is entitled to require the immediate payment of all open – also not due – calculations.
7. with demands due to several supplies and/or achievements the setting off of money receipts on the one or on the other debt of the Nautilus Wassersysteme GmbH & Co KG is left. The customer is not entitled to withhold payments or to refuse payments due to any claims, even if they were raised due to notices of defects. Also it cannot set off with possible counterclaims, which the Nautilus Wassersysteme GmbH & Co. KG did not recognize expressly or which were not validly determined or ripe for the valid decision.
§ 14 – Retention of title
1. the supplied commodity remains up to the complete payment of the purchase price and repayment of all demands existing from the business relation and in connection with the object of the purchase still developing demands as reservation commodity property of the Nautilus water systems GmbH & CO kg. The inclusion of individual claims in a current account or the striking of a balance and the recognition thereof shall not cancel the retention of title. If, in connection with the payment of the purchase price by the customer, a liability under a bill of exchange is established on our part, the reservation of title shall not expire before the bill of exchange has been honored by the customer as drawee. With delay of payment of the customer Nautilus Wassersysteme GmbH & Co. KG is entitled to the cancelling of the reservation commodity after reminder and the customer is obligated to the publication.
2. if reservation commodity is sold by the customer, alone or together with not the Nautilus Wassersysteme GmbH & Co. KG belonging commodity, then the customer retires already now the demands at height of the value of the reservation commodity with all secondary rights and rank before the remainder, resulting from the far sale; Nautilus Wassersysteme GmbH & Co. KG accepts the transfer. Value of the reservation commodity is the amount charged by the Nautilus Wassersysteme GmbH & Co. KG plus a safety addition of 10%, which remains however out beginning, as far as rights third oppose it. If the resold goods subject to retention of title are co-owned by us, the assignment of the claim shall extend to the amount corresponding to our share value in the co-ownership. § Section 12 No. 1 Sentence 2 shall apply mutatis mutandis to the extended retention of title; the advance assignment pursuant to Section 12 No. 3 Sentences 1 and 3 shall also extend to the balance claim.
If the reserved goods are installed by the customer as an essential component in the property of a third party, the customer hereby assigns its future claims for payment against the third party or the party concerned in the amount of the invoice value of our claim with all ancillary rights, including the right to grant a security mortgage. We accept the assignment. The customer is entitled to collect the claims in his own name. Incoming payments from the third party will only be offset against the claim not assigned to us. If the customer’s claim has been settled, the customer shall transfer the third party’s further payments on the claim assigned to us directly to us.
5. if goods subject to retention of title are installed by the customer as an essential component in the customer’s property, the customer hereby assigns the claims arising from the commercial sale of the property or of property rights in the amount of the value of the goods subject to retention of title with all ancillary rights and with priority over the rest; we accept the assignment. § 12 number 2 sentence 2 and 3 apply accordingly.
The customer shall be entitled and authorized to resell, use or install the goods subject to retention of title only in the ordinary course of business and only subject to the proviso that the claims within the meaning of § 12 items 3, 4 and 5 are actually transferred to us. The customer shall not be entitled to dispose of the reserved goods in any other way, in particular by pledging them or assigning them as security. He is obligated to secure our rights in the event of resale of the reserved goods in the amount of the purchase price claim on credit.
7. we authorize the customer, subject to revocation, to collect the claims assigned pursuant to § 12 clauses 3, 4 and 5. We shall not make use of our own right of collection as long as the customer meets his payment obligations, also towards third parties. Upon request, the customer shall name the debtors of the assigned claims and notify them of the assignment; we are also authorized to notify the debtors of the assignment ourselves.
8. the customer must inform us immediately of any compulsory execution measures by third parties against the reserved goods or the assigned claims, handing over the documents necessary for the objection. In the event of cessation of payments, application for or opening of insolvency proceedings or out-of-court composition proceedings, the right to resell, use or install the reserved goods and the authorization to collect the assigned claims shall expire; in the event of a protest of a check or bill of exchange, the authorization to collect shall also expire.
9. the securities provided for us shall also extend to those liabilities which, in the event of insolvency, are created unilaterally by the insolvency administrator by way of choice of performance.
10. if the customer has already provided other security or if further security is provided at a later date, we may only demand additional security in accordance with the provisions of § 12 clauses 4 and 6 if the realizable value of all security together does not exceed 110 % of the secured purchase price claim. If this value is exceeded, the customer shall have a corresponding claim to the release of collateral. For the valuation of collateral, 140% of the appraised value is used as the limit for the incurrence of a release claim for collateral assets, and 140% of the nominal value for receivables assigned as collateral.
§ 15 – Property rights and tools
We reserve the right of ownership and copyright to illustrations, drawings, calculations and other documents, also in digital form. This also applies to documents marked as “Confidential”. Before passing on to third parties, it requires written permission.
2. we permit copying of documents for internal use only.
Insofar as we deliver according to information, drawings, models, samples or use of parts provided by our customer, the customer shall be liable for ensuring that no third-party property rights are infringed. Our customer shall indemnify us against all claims of third parties and pay compensation for the damage incurred.
If we are prohibited from manufacturing or delivering by a third party with reference to an industrial property right belonging to him, we shall be entitled to stop the work and to invoice the costs incurred without examining the legal situation. The customer shall bear the costs of any legal disputes.
5. tools for the manufacture of the delivery item which have to be manufactured or procured by us shall remain our property, even if pro rata costs for this are invoiced.
§ 16 – FINAL PROVISIONS
1. place of fulfillment for the payment is the business seat of the Nautilus Wassersysteme GmbH & Co KG.
(2) If the contracting party is a merchant, a legal entity under public law or a special fund under public law, the courts having jurisdiction over the registered office of our company shall be agreed as having jurisdiction. The same shall apply if the contracting party does not have a general place of jurisdiction in Germany or if the party moves its place of residence or habitual abode outside the scope of German law after conclusion of the contract or if its place of residence or habitual abode is unknown at the time the action is filed. We are entitled to sue the customer at our discretion at the courts having jurisdiction over him.
The contractual relationship shall be governed by German law to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
4. should one of these provisions be or become void, invalid or unenforceable, this shall not affect the validity of the remaining provisions. The statutory provisions shall then apply in addition.
AGB ‘s Status 11.08.2023
