General Terms and Conditions (GTC) of CAM Energy GmbH
for the supply of technical equipment and systems
State 06/2021
1. Validity of these GTC
1.1 The following GTC apply to all contracts concluded by CAM Energy GmbH – hereinafter referred to as CAM – for the supply of technical equipment and systems and for contracts for work and services.
1.2 CAM shall not be bound by any conflicting or supplementary GTC of the customer unless CAM has expressly agreed to them. These GTC shall also apply if CAM provides supplies and services being aware of the customer’s conflicting terms and conditions, even if CAM does not expressly object to them.
2. Conclusion of contract
2.1 All offers made by CAM are non-binding. If the customer makes an offer by placing an order, it shall be bound by this offer for three (3) weeks. All orders placed with CAM’s employees, and subsequent amendments to contracts concluded by them shall only become effective if CAM confirms the order in writing (hereinafter referred to as “Order Confirmation”) or if CAM executes an ordered service. Other conduct or silence shall not constitute any obligation on the part of CAM. CAM’s employees are not authorized to waive the requirement of the Order Confirmation or to make promises that differ from its content.
2.2 If the Order Confirmation contains changes or additions to the order, the contract is concluded with the content of the Order Confirmation if the customer has not objected to the Order Confirmation in writing to CAM within seven (7) calendar days of receipt of the Order Confirmation by the customer. This presupposes that CAM has expressly informed the customer of the deviation from its order and the aforementioned deadline in the Order Confirmation.
3. Duty to cooperate for contracts with installation services
In the case of contracts that include installation services, the customer must ensure adequate and safe access to the construction site and sufficient unloading space and create the structural conditions for the installation work; in winter, the room in which the installation work is carried out must be heated; the customer is obliged to provide electrical power, water and lighting. The customer must create the conditions for carrying out test runs.
4. Obligations of CAM
4.1 CAM is not obliged to perform until the customer has made the agreed down payments and all other obligations incumbent on him in advance have been fulfilled. CAM’s compliance with deadlines is conditional on and the customer is in default of acceptance if (a) the customer fails to provide documents, approvals or releases to be obtained in good time or fails to comply with other obligations to cooperate necessary for the performance of the service or (b) the shipment of the goods is delayed due to circumstances for which the customer is responsible. CAM’s further claims shall remain unaffected.
4.2 Unless expressly agreed otherwise, CAM is not obliged to organize the transport of goods, to insure the goods, to provide certificates or documents not expressly agreed, to obtain the licenses, permits or other formalities required for import or export or to take care of customs clearance, to bear public charges incurred outside Essen (Oldb.), to comply with systems of weights and measures, packaging, labelling or marking regulations applicable outside Essen (Oldb.). The customer shall release CAM from any obligation to take back transport packaging and all other packaging in accordance with the Packaging Act (VerpackG).
5. Price and payment
5.1 In the case of agreed installation, the payment claim is due at the latest upon acceptance. If the service is accepted in parts, the agreed payment shall be made for each part upon its acceptance. Agreed down payment obligations remain unaffected.
5.2 Payments shall be made in euros on the date specified in the Order Confirmation. The receipt of payment by CAM is decisive for the timeliness of payment. Fulfilment shall only be effective if payment is made to CAM’s contractually agreed bank account.
5.3 In the event of default in payment, the customer shall owe interest of 9 percentage points above the respective base interest rate p.a. and a lump sum fee of EUR 40 for reminders (Section 288 (5) German Civil Code). CAM’s further claims shall remain unaffected.
5.4 If the customer is in arrears with payment or if there are other serious indications that payment is at risk, CAM is entitled, subject to further claims, to demand immediate payment for deliveries already made and, at its own discretion, advance payment or payment on delivery for future deliveries. Alternatively, CAM may demand the provision of sufficient securities. If the customer does not comply with the request for payment or the provision of securities within a reasonable period of time, CAM is entitled to withdraw from the contract.
5.5 The customer is not entitled to set-off against CAM’s payment claims or to exercise a right of retention on the basis of counterclaims unless the customer’s counterclaim is based on its own rights and is either established by a non-appealable court decision, acknowledged by CAM in writing or undisputed. This restriction does not apply to the customer’s counterclaims due to defects or due to partial non-performance that are based on the same contractual relationship as CAM’s claim.
6. Use of software
6.1 When software is supplied, the customer is granted a non-exclusive and non-transferable right to use the software and the associated documentation for the intended operation of the goods for which the software is supplied. Apart from a backup copy, the customer may not make any copies. Copyright notices, serial numbers and other features serving to identify the software may not be removed, changed or made unrecognisable.
6.2 The customer is not entitled to reproduce, modify or edit, translate, disassemble, decompile, reverse engineer or otherwise modify the software in whole or in part without CAM’s consent outside the cases specified in Sections 69d and 69e of the German Copyright Act (UrhG) or to create derivative works from it, to reverse-translate it into other forms of code or to reverse-engineer the know-how contained in the software in any other way by means of observation, examination, reverse engineering or testing.
6.3 The customer is obliged to prevent unauthorized access by third parties to the software and the documentation by taking suitable precautions. The customer shall keep the original data carriers supplied and the backup copy in a place protected against unauthorized access by third parties and shall clearly mark the backup copy with the words “Backup copy” and a copyright notice from CAM. Its employees must be emphatically instructed to comply with these Terms of Delivery and the provisions of copyright law.
6.4 CAM’s liability for the loss or alteration of data is limited to the typical restoration costs which would have been incurred if back-up copies had been made regularly and in accordance with the risks involved.
7. Retention of title
7.1 Delivered goods shall remain CAM’s property until the customer has fulfilled all CAM’s claims arising from the business relationship, including future claims arising from contracts concluded at the same time or later.
7.2 The goods subject to retention of title may not be pledged to third parties or assigned as security until the secured claims have been paid in full.
7.3 Until revoked, the customer is authorized to resell the goods subject to retention of title in the ordinary course of business. Claims from resale are hereby assigned to CAM. CAM accepts this assignment. Proceeds from resale are deemed to have been collected for CAM and are to be transferred to CAM if CAM has receivables due. The customer remains authorized to collect the claim in addition to CAM. CAM undertakes not to collect the claim as long as the customer meets its payment obligations to CAM and no insolvency petition has been filed against its assets. If these conditions no longer apply, CAM may demand that the customer informs CAM of the assigned claims and their debtors, provides all information required for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment. Furthermore, in this case CAM is entitled to revoke the customer’s authority to further sell the goods which are subject to retention of title.
7.4 In the event of breach of contract by the customer, in particular in the event of default in payment, CAM is entitled, without prejudice to any other rights, to withdraw from the contract after the expiry of a reasonable grace period set by CAM and to take back the delivered goods.
7.5 CAM undertakes to release securities if and to the extent that their value exceeds 120% of CAM’s claim; CAM shall be responsible for selecting the securities to be released.
7.6 In the case of deliveries to other legal systems in which this retention of title provision does not have the same security effect as in the Federal Republic of Germany, the customer hereby grants CAM a corresponding security. If further measures are required for this purpose, the customer shall do everything in its power to grant CAM such a security interest without delay. The customer shall cooperate in all measures which are necessary and conducive to the effectiveness and enforceability of such security rights.
8. Acceptance and transfer of risk
8.1 For the delivery of goods, the risk shall pass to the customer when the goods are loaded at CAM, irrespective of who carries out the transport. If the shipment is delayed due to circumstances for which the customer is responsible, the risk shall pass to the customer upon notification that the goods are ready for shipment.
8.2 In the case of installation services, the risk shall pass to the customer upon acceptance of the goods. Written acceptance shall be deemed to have occurred in particular if the customer does not accept CAM’s services within a reasonable period of time set by CAM, although the customer is obliged to do so. Acceptance may not be refused due to insignificant defects.
8.3 CAM may demand partial acceptance from the customer for self-contained parts of the subject matter of the contract after their completion in the case of assembly. Otherwise, CAM may demand acceptance upon completion. The contractual and statutory warranty claims due to defects reserved by the customer during (partial) acceptance remain unaffected.
9. Warranty
9.1 In the event of a defect in the goods, CAM shall provide the customer with a warranty in accordance with the following provisions:
9.2 The quality of the item owed by CAM and the quantity are conclusively based on the information in the Order Confirmation. Public statements made by CAM or by CAM’s employees or third parties regarding the goods owed shall not be taken into account when determining the quality of the performance owed. CAM’s employees are not authorized to make any guarantee declarations, statements regarding quality or statements regarding cost-effectiveness beyond the Order Confirmation.
9.3 CAM only provides a guarantee (Section 443 of the German Civil Code) if this is stated in the Order Confirmation. Other declarations by CAM or CAM employees do not constitute a guarantee under any circumstances.
9.4 The customer must inspect the goods immediately after they have been handed over and must check each individual delivery in every respect for any recognizable and for any typical contractual irregularities. The customer is obliged to notify CAM immediately and in writing of any recognizable defects. The obligation to report hidden defects remains unaffected.
9.5 Defects in partial deliveries do not entitle the customer to complain about the entire delivery.
9.6 In the event of justified complaints, CAM shall, at its discretion, remedy the defect or supply a replacement. In the event of final failure and in the event of impossibility or unreasonableness or refusal of subsequent performance, the customer is entitled to a reduction in price or to withdraw from the contract. Claims for damages shall only exist within the scope of the liability provision set out in clause 10.
9.7 The warranty period is 12 months. If the defective goods have been used in accordance with their customary use for a building and have caused its defectiveness or if it is a defect in a building, the limitation period shall be five years. The limitation period shall begin with the acceptance of the installation; in the event of an agreed partial acceptance, the limitation period for the respective part of the installation shall begin with the partial acceptance. The shortening of the limitation period pursuant to sentence 1 shall not apply to claims for damages due to injury to life, body or health or due to intent or gross negligence. The limitation provisions pursuant to Section 445b of the German Civil Code (BGB) in the event of supplier recourse shall also remain unaffected. A statement by CAM regarding a claim for defects asserted by the customer shall not be regarded as entering into negotiations regarding the claim or the circumstances giving rise to the claim, provided that the claim for defects is rejected in full by CAM.
9.8 CAM does not warrant that the goods are suitable for the purpose assumed by the customer, unless this purpose is expressly agreed in the contract. The goods comply with the statutory provisions applicable in Germany. CAM is not obliged to determine any deviating public law regulations of other countries or to warrant the conformity of the goods with such regulations. The customer is solely responsible for checking the public-law regulations applicable at the customer’s place of business or in another country of destination and the requirements and restrictions resulting therefrom with regard to the use and distribution of the goods. The customer shall also be responsible for obtaining, at its own expense, any necessary permits and authorizations required for the use and/or delivery and/or assembly.
10. Liability
10.1 CAM shall be liable without limitation for damages arising from the breach of a guarantee or from injury to life, limb or health. The same applies to intent and gross negligence. CAM is only liable for slight negligence if material contractual obligations are breached. Material contractual obligations are those whose fulfilment is necessary for achieving the purpose of the contract and on whose compliance the customer regularly relies and may rely. In the event of a breach of such obligations due to slight negligence, CAM’s liability shall be limited to such damages as may typically be expected to occur within the scope of this contract. Mandatory statutory product liability under the Product Liability Act remains unaffected.
10.2 Insofar as CAM is liable under the statutory provisions in the event of default, liability for damages in addition to performance in the event of damage to property and financial loss is limited to 5% of the gross price of the delayed delivery or performance, insofar as CAM and its vicarious agents are not guilty of intent or gross negligence.
10.3 The above exclusions and limitations of liability shall also apply if the customer asserts a claim for reimbursement of futile expenses instead of a claim for damages in lieu of performance.
10.4 Insofar as CAM’s liability is limited, this shall also apply with regard to the personal liability of CAM’s executive bodies, employees, representatives and vicarious agents.
10.5 The customer is obliged to inform CAM in writing of any special risks of damage prior to the conclusion of the contract.
11. Product modifications, product liability
11.1 The customer shall not modify the goods; in particular, the customer shall not modify or remove any existing warnings about the dangers of improper use of the goods. In the event of a breach of this obligation, the customer shall indemnify CAM against any resulting claims by third parties unless the customer proves that it is not responsible for the breach of obligation. Further claims by CAM remain unaffected.
11.2 If CAM is prompted to issue a product recall or warning due to a product defect in the goods, the customer shall support CAM in the measures to the best of its ability to a reasonable extent in the interest of mitigation of damages, in particular in determining the necessary customer data.
11.3 The customer shall immediately inform CAM in writing of any risks in the use of the products and possible product defects that become known to the customer.
12. Rescission
Without waiving any further legal rights, CAM is entitled to withdraw from the contract in whole or in part without being obliged to compensate the customer if the customer has provided inaccurate information about its creditworthiness, if CAM itself is not supplied correctly or on time through no fault of its own or if CAM is no longer able to fulfil its performance obligations for other reasons by means which are reasonable taking into account its own interests and the customer’s legitimate interests recognizable at the time the contract was concluded and in particular the agreed consideration.
13. Force majeure
13.1 If CAM is unable to fulfil its obligations under this contract due to force majeure, CAM shall be released from its obligations under this contract for the duration of the force majeure and any deadlines shall be extended accordingly without being obliged to compensate the customer. CAM may, however, demand compensation for its proportionate performance. If the state of force majeure lasts for more than six months, either party may withdraw from the contract in whole or in part.
13.2 Force majeure shall be deemed to exist in particular in the event of natural disasters (earthquakes, floods, storms, etc.), war, strikes, riots, the effects of pandemics and epidemics as well as sovereign measures and orders.
13.3 CAM undertakes to inform the Customer as soon as possible in text form of the start and expected duration of the impediment.
13.4 Force majeure within the meaning of this provision also exists if these circumstances affect a subcontractor or vicarious agent of CAM.
14. Export control regulation
14.1 The conclusion and execution of the contract are subject to the admissibility of export control law in accordance with applicable German and EU law; this also applies with regard to applicable US and other national law, insofar as this does not conflict with German or European legal provisions.
14.2 The contracting parties shall support each other (“duty to cooperate”), in particular in the procurement of all information and documents required for the examination of and compliance with export control requirements and restrictions (e.g. for the purpose of applying for licenses/obtaining other information from authorities or for the fulfilment of notification obligations). The customer is obliged to inform CAM if the final destination is outside the European Union.
14.3 If CAM owes the delivery to a destination outside the European Union and CAM has doubts as to the relevance of export control restrictions, it may obtain legally binding information from the competent authorities to dispel these doubts (e.g. zero ruling). If the contract cannot be fulfilled due to applicable export control restrictions, in particular due to non-issuance of the required licenses by the competent authorities, either contracting party may withdraw from the contract in whole or in part without notice by written declaration to the other contracting party. CAM may also withdraw from the contract in whole or in part without notice by written declaration to the customer if the customer fails to provide the necessary information and documents within six weeks of CAM’s request.
14.4 In the event of withdrawal, CAM is entitled to reimbursement of costs for work already performed and materials used up to that point.
14.5 CAM is entitled but not obliged to take legal or extra-judicial action against negative decisions by the competent authorities or to seek legal protection from the courts in the event that the official proceedings take an unreasonably long time.
15. Data protection, rights to documents and confidentiality
15.1 CAM is entitled to store and process data about the customer obtained from the business relationship in accordance with the European General Data Protection Regulation (GDPR) to the extent necessary for the performance of the contract.
15.2 The customer grants CAM the non-exclusive right to use user data exclusively and only to the extent necessary for the purpose of providing the contractual support and maintenance services.
15.3 If this information contains personal data, it will be anonymized before it is used and evaluated further. The data shall be treated as machine data.
15.4 CAM reserves all copyrights, other industrial property rights and know-how rights to illustrations, drawings, calculations and other documents. They must be kept secret from third parties and may only be used for the intended purpose.
16. Miscellaneous
16.1 The place of performance, payment and fulfilment for all obligations arising from this contract is Essen (Oldb.). Agreements on the bearing of costs shall not change this.
16.2 The law of the Federal Republic of Germany shall apply to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
16.3 For all disputes arising from or in connection with contracts subject to these GTC, the local and international jurisdiction of the courts having jurisdiction for Essen (Oldb.) is agreed. To the customer this agreement on jurisdiction applies exclusively. However, CAM is also entitled to bring an action at the customer’s place of business or before other courts with jurisdiction under domestic or foreign law in individual cases.