General Terms & Conditions
On this page you will find our Sales & Delivery Terms for International Business Relations, the General Terms & Conditions of Purchase and our General Terms & Conditions for Services.
Sales & Delivery Terms for International Business Relations
1 General information
In case of a contract, the present sales terms shall be subject to the sales contract. The following terms and conditions shall also apply in the event that the Buyer, despite the opportunity provided to him to take note of them, makes no reference to them in his order or refers to his own terms and conditions. The Sales and Delivery Terms apply exclusively. Deviating, conflicting or supplementary general terms and conditions of the Buyer only become part of the contract if and insofar as the Seller has expressly agreed to their validity. This consent requirement shall apply in any case, for example also if an order is executed to the Buyer without reservation in the knowledge of the Buyer's Sales and Delivery Terms. Individual agreements made in individual cases (including ancillary agreements, supplements and amendments), which concern current (i.e. no previous or future) business transactions, take precedence over these Sales and Delivery Terms in all cases. They must be in the form of a written agreement. Subject to proof to the contrary, a written contract or the written confirmation of the Seller shall be decisive for the content of such agreements.
2 Offer
Offers exclusively relate to written inquiries. It shall be the Buyer's duty to take due care for the accuracy of all information and specifications made on his part. Offers of the Seller are binding for a period of ninety (90) calendar days, starting from the date of issue.
3 Order
Orders shall be issued in written form and with reference to the corresponding offer. In case of a partial order, volume of performance, amount, and price shall be listed explicitly. The order is only accepted when a written confirmation of order is presented. Additional changes shall be made in written form and require the consent of the Seller. Supplementary agreements, changes or amendments made before or on conclusion of the contract shall be drawn up in writing to be effective.
4 Terms of delivery
4a Period of delivery
The delivery period shall be mentioned explicitly in the offer. With regard to services, the delivery period starts with the confirmation of the order; with regard to hardware, additionally after the settlement of all technical issues and details and a written release by the Buyer.
4b Document management
The Buyer shall comment and release all technical documents, submitted by the Seller, within 14 days. Technical documents are, but not limited to, drawings, diagrams, flow sheets and lists. The first revision requested by the Buyer is included in the total contract price. Every delayed approval of documents or additionally revisions requested by the Buyer, will cause a prolongation of the Time of Shipment in the same value than the delay. After confirmation of the first revision by the Buyer, every additional revision, if caused by the Buyer, will effect extra costs, which shall be borne by the Buyer.
4c Delays in delivery
If the Buyer fails to take delivery, infringes culpably his cooperation duties, or does not make the contractual payments, the delivery period shall be prolonged correspondingly to the respective delay. Possible additional expenses arising from the above mentioned delays, shall be paid on part of the Buyer. Even in the case of binding delivery deadlines, the Seller is not liable for delays in delivery due to force majeure or other events that substantially complicate or completely hinder the delivery or performance, such as strikes, lockouts, official instructions, etc. If the Seller is unable to meet binding delivery deadlines for reasons for which he is not responsible, he will inform the Buyer of this without delay and at the same time notify the expected new delivery deadline. This period shall continue until the above-mentioned circumstance is removed, but shall not exceed 6 months. If the service is not available even within the new delivery period, the Seller shall be entitled to withdraw from the contract in whole or in part; any consideration already provided by the Buyer shall be refunded to him without delay.
4d Delivery and risk passing
The delivery shall be carried out at expense and risk of the Buyer. Unless otherwise agreed, the Seller shall be entitled to determine the type of delivery (in particular the transport company, route of delivery, packaging) himself. The delivery shall be insured against transport damages only on explicit demand on part and at expense of the Buyer. The risk shall be passed on to the Buyer at delivery; and latest when leaving the warehouse for shipment. In the event of collection on the part of the Buyer, the risk is transferred upon notification of readiness for delivery, including the selection of the goods and notification of the creditor. All additional individually and in written form stipulated terms of delivery apply without limitation to the INCOTERMS 2020 of the International Chamber of Industry and Commerce.
4e Packing and shipping marks
The goods shall be packed in steel container(s), strong wooden case(s) or in carton(s), suitable for long distance truck/ocean/air freight transportation and well protected against moisture, shocks and rust. The Seller shall indicate the weight, dimensions, as well as contact information of the Buyer and the Seller in English printed words and the marks according to international trade and transportation regulations.
5 Terms of payment
5a Retention of proprietary rights
The goods shall remain in the property of the Seller until the complete receipt of payment of all accounts resulting from the business relationship with the Buyer (reserved goods). The Buyer must sufficiently insure the goods already received at their replacement value against theft, fire, water and other damage at their own expense until the transfer of ownership. If maintenance and inspection work becomes necessary, he must carry it out in good time at his own expense. The Buyer binds himself to comply with Seller's operating and storage instructions. The Buyer shall be entitled to resell the reserved goods in orderly business transactions provided that he is not currently undergoing delays in payment. In case of resale, accounts receivable resulting from the respective legal transaction must be assigned at the amount of the invoice value. The Buyer is entitled to collect the sum due resulting from the resale until revoked. The retention of property rights extends to the full value of the products resulting from the processing, mixing or combination of goods, whereby the Seller is considered the manufacturer. In case that the Seller's co-ownership is terminated due to union, it shall be agreed on that the mentioned co-ownership in the common property already now is transferred proportionally to the Seller.
5b Prices and payment
All price indications show net prices excluding taxes, fees, and tariffs and excluding costs for packing and transport. Possible items shall be shown and charged separately, except for specific taxes, duties, and tariffs that are valid in the respective country. These items are not included in the sales price and therefore have to be paid by the Buyer. The invoice amount is binding and can only be modified by the Seller. The Credit period shall be twenty (20) calendar days. The Buyer will bear all costs regarding the financial transaction. In case of exceeding the credit period, the Seller reserves himself the right to charge processing fees, or penal respectively default interests. Payments shall always be made to the banking connection indicated on the invoice. It is possible that different banking connections are indicated on different invoices. The Seller only accepts electronically transfers and no check payments. All payments without discount for cash. For Letter of Credits or Cash against Documents the amount is payable at presentation of the documents.
6 Liability
6a Claims for defects
The Buyer's claims for defects presuppose that, in the case of a commercial transaction, he has fulfilled his statutory obligations to inspect and give notice of defects (§§ 377, 381 German Commercial Code). In the case of building materials and other goods intended for installation or other further processing, an inspection must in any case be carried out immediately before processing. If a defect is revealed during delivery, inspection or at any later time, the Seller shall be notified immediately in writing. In any case, obvious defects must be reported in writing within one week of delivery of the goods and defects not detectable during the inspection within the same period of time after their discovery. If the Buyer fails to carry out the proper inspection and/or notification of defects, the liability of the Seller for the defect not notified or not notified in time or properly is excluded in accordance with the statutory provisions.
6b Guarantee
The Seller shall guarantee the correct functioning of the respective delivered hardware (including all the respective components) for a period of twelve (12) months beginning with the initial operation, or latest eighteen (18) months after delivery. Wear and tear parts shall be excluded from this guarantee of functioning. The guarantee expires if the Buyer does not use the machine in accordance with the operation instructions or contravenes the Seller's maintenance and inspection instructions. This does not include a process guarantee, which has to be agreed on separately.
6c Restrictions of liability
If the Buyer is able to assert contractual or statutory claims for damages against the Buyer arising from the delivery for personal injury and damage to items not included in the scope of delivery, the Seller shall only be liable in case of intent and gross negligence, otherwise up to an amount corresponding to 10% of the base price of the entire delivery ex works (i.e. excluding all expenses for packaging, fees, assembly, etc.). This does not include damages resulting from injury to life, body or health and damages resulting from the violation of an essential contractual obligation (an obligation whose fulfilment makes the proper execution of the contract possible in the first place and on whose compliance the contractual partner regularly relies and may rely); in the latter case, the liability of the Seller is limited to the compensation of the foreseeable, typically occurring damage. These limitations of liability shall also apply to breaches of duty by or in favour of persons whose fault the Seller is responsible for under statutory provisions. They do not apply if the Seller fraudulently concealed a defect or assumed a guarantee for the quality of the goods and for claims of the Buyer under the Product Liability Act. The same applies to indirect damages and those resulting from force majeure.
7 Protection of rights
7a Proprietary rights & copyrights
The Seller reserves proprietary rights as well as copyrights for all technical solutions, figures, drawings, and other documents presented in the offer. These documents must not be duplicated or made accessible to a third party without the written consent of the Seller and have to be returned on demand including all eventual copies. The Seller's products are generally patented.
7b Secrecy agreement
Both parties commit themselves to treat all business secrets of the other party that become known in the course of the cooperation, as well as afterwards, as confidential against third parties. This shall especially apply for those documents that are marked as confidential.
8 Applicable law & jurisdiction
The present sales terms shall be subject to the laws of the Federal Republic of Germany with the explicit exclusion of the regulations of the UN purchase laws. Karlsruhe, Germany shall be regarded as the exclusive Court of Jurisdiction for all legal disputes directly or indirectly arising from this agreement.
General Terms & Conditions of Purchase
1 General, Scope
1a
The following General Terms and Conditions of Purchase apply to all business relationships between BOKELA GmbH (hereinafter: "Principal") with its business partners (hereinafter: "Suppliers"), in particular for contracts for the manufacture and/or delivery of movable goods (hereinafter also: "Goods").
1b
These General Terms and Conditions of Purchase apply exclusively. Deviating, contradictory or supplementary general terms and conditions of the Supplier shall only become part of the contract if and insofar as the Principal has expressly agreed to their validity in writing. This approval requirement applies in any case, e.g. even if the Principal accepts the Supplier's deliveries without reservation in the knowledge of the Supplier's general terms and conditions.
1c
Individual agreements made with the Supplier in individual cases (including side agreements, additions and changes) always take precedence over these General Terms and Conditions of Purchase. The content of such individual agreements shall be governed by a written contract or the written confirmation of the Principal.
2 Contract closing, Contract contents, Place of performance
2a
The contract is concluded upon receipt of the signed order confirmation from the Supplier. The acceptance period of the Principal’s orders is 5 working days from the date of the order.
2b
All standards and specifications, guidelines and regulatory statutes listed in the order, as well as the technical documents listed in the order, in particular the Principal’s manufacturing drawings and instructions, are binding elements of the contract offer.
2c
If the Supplier changes or removes one of these binding elements of the contract in the order confirmation, he must expressly inform the Principal. The amended order confirmation of the Supplier shall be considered as a new offer to conclude a contract, which shall only lead to the conclusion of a contract if expressly accepted by the Principal.
2d
The place of performance is the destination specified in the order. If the destination is not specified and nothing else has been agreed, delivery must be made to the Principal’s place of business in Karlsruhe (DAP for domestic deliveries and DDP for deliveries from third countries in accordance with INCOTERMS 2010).
3 Quality assurance
3a Supplier’s duty to notify
The Supplier shall immediately notify the Principal of any contradictory, incorrect or missing information concerning the goods and wait for a written clarification by the Principal before commencing the execution of the contractual services. As far as technical matters are concerned, the Supplier must submit a "Technical Query" (TQ) that corresponds to the Principal’s directives.
3b Sub-suppliers/Sub-contractors
The Supplier is only entitled to have the service owed by him performed by third parties, e.g. sub-suppliers or sub-contractors, with the prior written consent of the Principal. The supplier shall be liable for the performance of these third parties as for his own performance.
3c Quality control
It is imperative that the quality controls and inspections specified in the order be followed and documented accordingly.
3d Right of inspection
The Principal is entitled to inspect the production as well as the manufactured goods or intermediate products in production at the respective location himself or by agents after reasonable notice during normal business hours and, if necessary, to inspect them or have them inspected or checked. The Supplier must provide all information required for this purpose and submit the relevant documents for inspection.
3e Regular reporting
The Supplier undertakes to inform the Principal of the production or processing status of the goods in writing on a regular basis, at the latest every thirty (30) days. Changes in the schedule as well as other irregularities regarding the goods or the delivery date must be reported immediately, stating the facts. In this case, the Principal has the right to shorten the reporting cycles.
3f Acceptance
(1) If the object of the contract is the manufacture of the goods, a final acceptance must be carried out before the goods are dispatched. The Principal is entitled to participate in the final acceptance with persons of his choice. This final acceptance is part of the order.
(2) If the acceptance must be repeated due to circumstances for which the Supplier is responsible, the Supplier must bear the costs incurred for the repeated acceptance. Even in case of a successful final acceptance, the goods are only dispatched upon written dispatch release from the Principal.
4 Delivery terms
4a Delivery period
(1) The delivery date stated in the order is binding.
(2) If a delivery period has been agreed, it shall begin with the Principal’s receipt of the Supplier’s order confirmation, but no later than 5 days after the date of the order.
4b Delivery delay, Contractual penalty
(1) As soon as the Supplier becomes aware of facts that could jeopardize compliance with the delivery deadline or the delivery date, he must immediately notify the Principal in writing. The Supplier must immediately take appropriate measures to prevent or reduce the expected delay in delivery.
(2) If it is foreseeable that the delivery cannot take place within a period of forty (40) days after the agreed delivery date, the Principal is entitled to withdraw from the contract without any further deadline.
(3) If the Supplier is in default, the Principal can demand a contractual penalty of 1% of the net price per completed calendar week, but not more than 5% of the net price of the goods delivered late. The Principal is entitled to demand the contractual penalty in addition to the fulfilment and as a minimum amount of compensation owed by the Supplier in accordance with the statutory provisions; the assertion of further damage remains unaffected. If the Principal accepts the delayed service, he will claim the contractual penalty at the latest with the final payment.
4c Storage and insurance of the goods
(1) Until the entire delivery is dispatched, the Supplier shall store free of charge all parts or intermediate goods belonging to the Principal’s delivery and ensure that they are properly stored, handled with care and used only for the purpose of fulfilling the order.
(2) The Supplier undertakes to store the parts or intermediate goods belonging to the Principal’s delivery separately from other objects and to mark them in a suitable manner as belonging to the Principal’s order.
(3) If the Supplier files for bankruptcy or enforcement measures are threatened or carried out by third parties, the Principal must be informed immediately. Appropriate security measures must be taken for the goods as well as parts or intermediate goods thereof, which are in the possession of the Supplier and for which the Principal has already made payments.
(4) The raw materials, intermediate goods and the goods themselves must be adequately insured against loss or damage due to water, fire, storm and theft until delivery at the place of destination.
4d Dispatch, Transfer of risk
(1) Unless otherwise agreed in the order, packaging for shipment is included in the purchase price. The packaging must meet the minimum requirements of the agreed shipping regulations. If the shipping method has not been agreed, this must be requested from the Principal before packaging and can be determined by the Principal at his own discretion.
(2) Unless otherwise agreed in the order, the transport takes place through and at the expense of the Supplier to the destination specified in the order. During transportation, the Supplier must insure the goods at his own expense.
5 Remuneration
5a Invoicing
(1) The Supplier's invoices must meet the relevant tax and commercial law requirements. All price quotations must show separately net amounts, taxes, fees and any customs duties as well as packaging and transport costs. In addition, the complete order number of the Principal must be indicated.
(2) The Supplier must issue a separate invoice for each order. Collective invoices cannot be accepted. All invoices shall be drawn up in German or English. Proforma invoices do not replace a commercial invoice and are not accepted for payment.
(3) In the case of electronic invoicing, the invoice must be sent as a portable document format (PDF) to the email address invoicing@bokela.com. No other recipient address will be accepted.
5b Prices, Payment terms, Securities
(1) The price stated in the order is binding.
(2) All prices are subject to the applicable statutory sales tax. If the order is placed including the applicable statutory sales tax (gross price), this will be shown separately.
(3) Unless otherwise agreed on a case-by-case basis, the price includes all services and ancillary services of the Supplier (e. g. assembly, installation) as well as all ancillary costs (e.g. correct packaging, transportation costs including any transportation and liability insurance).
(4) Unless otherwise agreed in the order, the agreed remuneration is due for payment within 30 calendar days of complete delivery and performance (including any agreed acceptance) and receipt of a proper invoice in accordance with Section 5.1. If an advance payment has been agreed, the requirement of delivery/acceptance shall not apply to this advance payment; however, the remaining maturity requirements apply accordingly. The Principal does not owe any maturity interest.
(5) If advance payments of more than twenty-five thousand euros (EUR 25,000) have been agreed for an order, the Supplier must provide an irrevocable documentary advance payment bank guarantee or comparable declaration of suretyship, payable on first request, from a first-class bank or a comparable insurance policy from an approved insurance company in the amount of the advance payment in favor of the Principal. The guarantee amount is determined plus applicable sales tax at the statutory rate. The term of the guarantee ends sixty (60) days after the delivery date. The Supplier bears the cost of the guarantee.
(6) From an order value of fifty thousand euros (EUR 50,000) and for the duration of the warranty period plus sixty (60) days, an irrevocable documentary warranty guarantee or comparable declaration of suretyship payable on first request, from a first-class bank or a comparable insurance policy from an approved insurance company in the amount of ten per cent (10%) of the order amount must be provided by the Supplier in favor of the Principal. The order value of wear parts is excluded from the guarantee. The supplier bears the cost of the guarantee.
6 Liability for defects
6a
In accordance with the statutory provisions, the Supplier shall be liable in particular for ensuring that the goods have the agreed quality at the time of the transfer of risk to the Principal. In any case, the product descriptions that are the subject of the respective contract - in particular by designation or reference in the Principal’s order - are considered an agreement on the quality. It makes no difference whether the product description originates from the Principal, the Supplier or the manufacturer. This includes in particular the mechanical function and the flawless execution of the delivered goods. The regulations and provisions applicable in Germany are considered a contractually agreed minimum standard that must be met by the Supplier at all times.
6b
The warranty period is twenty-four (24) months.
6c
For the commercial duty of inspection and notification of defects, the statutory provisions (§§ 377, 381 HGB) shall apply, with the following proviso: The Principal’s inspection obligation is limited to defects which become apparent during the Principal’s incoming goods inspection under external inspection, including the delivery documents, as well as during the Principal’s quality control by random sampling (e. g. transport damage, wrong and short delivery). Otherwise, it depends on the extent to which an inspection is feasible in the ordinary course of business, taking into account the circumstances of the individual case. The Principal’s obligation to give notice of defects discovered later remains unaffected. The Principal’s complaint (notification of defects) must be made to the Supplier within 15 working days of receipt of the goods.
6d
The costs incurred by the Supplier for the purpose of inspection and rework (including any dismantling and installation costs) shall be borne by the Supplier even if it turns out that there was indeed no defect. The Principal’s liability for damages in the event of an unjustified request for elimination of defects remains unaffected; however, in this respect the Principal is only liable if he has recognized or, through gross negligence, failed to recognize that there was no defect.
6e
If the Supplier does not meet his obligation to provide supplementary performance - at the discretion of the Principal through elimination of the defect (subsequent improvement) or through delivery of a defect-free item (replacement delivery) - within a reasonable period of time set by the Principal, the Principal may remedy the defect himself and demand reimbursement of the necessary expenses and a corresponding advance payment from the Supplier. If the supplementary performance by the Supplier has failed or is unreasonable for the Principal (e.g. due to particular urgency, endangering operational security or impending disproportionate damage), no deadline is required; the Principal will inform the Supplier of such circumstances without delay, if possible in advance.
6f
For defects that can only be remedied at the place of destination of the goods or where, from an economic and temporal point of view, remedy can only be reasonably expected on site, the Supplier shall, at the Principal’s request, send suitable personnel at his own expense within fourteen (14) days. The Supplier shall bear the costs incurred for the transport of replacement deliveries or other deliveries in connection with the repair of his products to the destination.
7 Product liability, Compulsory insurance
7a
If the Supplier is responsible for product damage, he must indemnify the Principal against third party claims insofar as the cause lies within his area of control and organization and he is personally liable in the external relationship.
7b
Within the scope of his indemnification obligation, the Supplier must reimburse expenses pursuant to §§ 683, 670 BGB (German Civil Code) which arise from or in connection with a third-party claim, including recall actions carried out by the Principal. The Principal will inform the Supplier - as far as possible and reasonable - about the content and scope of recall measures and give him the opportunity to comment. Further legal claims remain unaffected.
7c
The Supplier must ensure that any damage to property and personal injury in connection with the goods is sufficiently covered by a business liability, product liability or comparable insurance. The sum insured must cover three (3) times the value of the order amount, but not less than three million euros (EUR 3,000,000).
8 Property rights and copyrights, Confidentiality, References
8a
The Principal reserves the property rights and copyrights to the technical solutions, illustrations, drawings and other documents created for the offer and for production, which are transmitted to or become known to the Supplier. The documents may not be reproduced or made accessible to third parties without the written consent of the Principal and must be returned at any time upon request, including all possible reproductions.
8b
The Principal and the Supplier each undertake to keep secret from third parties all business or trade secrets of the other party that have become known in the course of the cooperation, also beyond the time of the cooperation. This applies in particular to documents that are marked as confidential. The Supplier will only disclose information to his employees and suppliers to the extent necessary to fulfil the obligations arising from the order. The Supplier undertakes to inform all employees and suppliers of the confidentiality obligation and to oblige them to maintain confidentiality under the same conditions within the legal possibilities.
8c
Without the prior written consent of the Principal, the Supplier is not entitled to publish information about orders via press releases or other publicly accessible media or to use the business relationship with the Customer as a reference.
9 Forfeiture, Offsetting and retention
9a
An omission or delay of the Principal in exercising rights under the General Terms and Conditions of Purchase or under applicable law does not release the Supplier from his obligations under these General Terms and Conditions of Purchase or from the fulfilment of the order, irrespective of whether the goods have been shipped, received, accepted or paid for.
9b
The Principal is entitled to set-off and retention rights as well as the objection of the non-fulfilled contract to the extent permitted by law. In particular, he is entitled to withhold due payments as long as he is still entitled to claims against the Supplier from incomplete or inadequate services.
9c
The Supplier has a right of set-off or retention only for counterclaims that have been legally established or are undisputed.
10 Applicable law, Place of Jurisdiction, Severability clause
10a
The law of the Federal Republic of Germany applies to these General Terms and Conditions of Purchase and all legal relationships between the Principal and the Supplier, with the express exclusion of the Conflict of Law provisions and the provisions of the UN Sales Convention.
10b
Karlsruhe is the exclusive place of jurisdiction for all legal disputes arising directly or indirectly from this agreement.
10c
Should a provision in these General Terms and Conditions of Purchase be or become invalid or unenforceable, this shall not affect the validity of the remaining provisions. In this case, the Principal and the Supplier undertake to agree on an effective provision that comes as close as possible to the invalid or missing agreement in an economically legally permissible manner.
General Terms & Conditions for Services
1 Scope
These General Terms and Conditions ("GTC") apply to the services carried out by BOKELA GmbH (hereinafter referred to collectively as the "contractor"), such as assembly, repairs, maintenance, inspections, audits, process consulting, trainings, spare parts deliveries, supervision during the construction and commissioning of as well as other services in connection with (hereinafter generally referred to as "services") filter systems (hereinafter referred to as "service item"). These terms and conditions apply to all, including future, contracts with companies, legal entities or special funds under public law (hereinafter referred to as "customers") for deliveries, services including contracts for work and services, service contracts, consulting services and other ancillary services. These GTC apply exclusively. Deviating, conflicting or supplementary GTC of the customer shall only become part of the contract if and to the extent that the contractor has expressly consented to their validity. This consent requirement also applies if the contractor executes an order without reservation in the knowledge of the customer's GTC. Individual agreements made in individual cases as well as side agreements, additions and changes relating to ongoing contracts take precedence over the General Terms and Conditions. Individual agreements require a written contract or the written confirmation of the contractor. Otherwise they are ineffective.
2 Conclusion of contract, General provisions
2a
The binding offer or the written order confirmation from the contractor is authoritative for the scope of the respective services.
2b
If the services are to be performed on a service item that was not delivered by the contractor, the customer must point out existing industrial property rights with regard to the service item upon conclusion of the contract; if the contractor is not at fault, the customer releases the contractor from any third party claims arising from industrial property rights.
2c
Furthermore, the objects on which services are to be provided must not pose any health risk for the contractor (ABC contamination).
2d
The contractor is entitled to use third parties to fulfill his contractual obligations.
2e
If the contractor delivers spare parts or other goods and items to the customer as part of the respective services, this delivery shall be made exclusively on the basis of the contractor's General Sales and Delivery Terms BOKELA GmbH valid at the time. The respective valid version is available to the customer upon request.
3 Not feasible services
3a
The services rendered for the purpose of submitting a cost estimate for requested services as well as the further expenses incurred and to be substantiated (troubleshooting time equal to working time) shall be invoiced to the Customer if the services cannot be performed for reasons for which the contractor is not responsible, in particular because:
- The queried defect did not occur during the inspection.
- Spare parts could not be procured.
- The customer culpably missed the agreed date.
- The contract was terminated during implementation.
3b
Insofar as the respective services are to be performed on a service item, this item only needs to be returned to its original condition at the express request of the customer against reimbursement of the costs, unless the work performed was not necessary.
3c
If services cannot be performed, the contractor is not liable for damage to the service item. Subject to Section XII. it is also not liable for the breach of secondary contractual obligations and for damage that has not occurred to the service item itself, regardless of the legal reason the customer invokes. Otherwise, the regulations according to Clause XII apply.
4 Specification of cost, Cost estimate
4a
The services of the contractor are charged based on the working time spent, including any necessary preparation time, travel costs incurred, in individual cases accommodation costs and materials used.
4b
As far as possible, the customer will be given the prospective price for the services used upon conclusion of the contract, otherwise the customer can set cost limits. If the services cannot be carried out at these costs or if the contractor considers it necessary to carry out additional work during the service, the customer's consent must be obtained if the quoted costs are exceeded by more than 15%.
4c
If a cost estimate with binding prices is required before the services are carried out, this must be expressly requested by the customer. Unless otherwise agreed, such a cost estimate is only binding if it is submitted in writing. The services provided for submitting the cost estimate will not be charged to the customer if the services are commissioned and they can be used when the services are carried out.
4d
The working hours of the contractor’s service staff begin when they leave the service staff accommodation and end upon arrival at the place of accommodation. Waiting times for which the contractor or his service personnel are not responsible are borne by the customer and can be invoiced separately.
5 Prices, Payment
5a
The contractor is entitled to request a reasonable advance payment upon conclusion of the contract.
5b
When calculating the services, the prices for parts, materials and special services used, as well as the prices for labor and working hours, travel and transport costs respectively must be shown separately. If the services are performed on the basis of a binding cost estimate, a reference to the cost estimate is sufficient, whereby only deviations in the scope of services are to be specifically listed. In the absence of a special agreement, the prices for deliveries (e. g. spare parts, materials used) apply free carrier (FCA (Free Carrier) Incoterms 2020) including loading at the contractor's premises, his manufacturing partner or warehouse. The customer is responsible for onward transport, transit and import.
5c
The value added tax is charged additionally at the respective statutory rate at the customer's expense.
5d
Any correction of the invoice on the part of the contractor and any complaint on the part of the customer must be made in writing no later than four weeks after receipt of the invoice.
5e
Payment is due after acceptance and handover or transmission of the invoice without a discount.
5f
The customer is not permitted to exercise offsetting and rights of retention against claims of the contractor, unless these are undisputed or legally established claims.
5g
Services will be invoiced according to the applicable hourly rates and daily flat rates for travel expenses of the contractor.
6 Cooperation, Technical support by the customer for services performed outside the customer's plant
6a
The customer must support the service staff in performing the services at his own expense.
6b
The customer must take the measures necessary to protect people and property at the location of the service. It has to inform the service staff about existing special safety regulations and dangers, insofar as these are important for the service staff. It notifies the contractor about violations of the service personnel against such safety regulations. In the event of serious violations, it can deny the offender access to the service location in cooperation with the contractor.
6c
The customer is obliged to provide assistance at his own expense, in particular with regards to:
(1) Provision of a responsible contact person on the part of the customer as well as the necessary suitable assistants in the number and time required for the services; the auxiliary staff have to follow the instructions of the service staff. The contractor assumes no liability for the assistants. If the auxiliary staff has caused a defect or damage due to instructions from the service staff, the provisions of Clauses XII. And XIII. apply accordingly.
(2) Execution of all construction, bedding and scaffolding work including the procurement of the necessary building materials and the provision of the necessary crane capacities including operating personnel, for whose services the customer is responsible.
(3) Provision of the necessary devices and heavy tools (lifting/industrial trucks, compressors), as well as the commodities and materials (e. g. documents, cleaning and sealing material, lubricants, fire extinguishers) including the disposal of problematic substances (e.g. waste oil, waste fats).
(4) Provision of electrical power, heating, lighting, operating power, water, including the necessary connections.
(5) Provision of necessary, dry and lockable rooms for the storage of the service staff’s tools.
(6) Enablement of unobstructed access to and across the customer's premises to the installation site for the purpose of transporting the assembly parts and the service staff or third parties, whose help the contractor uses to perform the services. The customer is obliged to provide adequate protection of the place where the services are to be provided and of the materials located there from harmful influences of any kind and to keep the place where the services are to be provided clean.
(7) Provision of suitable, theft-proof rest, changing and work rooms (with heating, lighting, washing facilities, sanitary facilities) and first aid for the service staff.
(8) Provision of materials and performance of all other actions necessary for the adjustment of the service item and for the performance of a contractually agreed test.
6d
The customer's technical assistance must ensure that the services can begin immediately after the arrival of the service staff and can be carried out without delay until acceptance by the customer. If special plans or instructions from the contractor are required, they will be made available to the customer in good time.
6e
For services within the scope of commissioning, in addition to the aforementioned assistance, the customer must in particular ensure a fully completed electronic and mechanical assembly of the service item as a prerequisite for the commencement of the service.
6f
If the customer does not meet his obligations, the contractor is entitled, after setting a deadline, to perform the actions incumbent on the customer in his place and at his expense. Otherwise the statutory rights and claims of the contractor remain unaffected.
7 Transport, Insurance for services to be performed at contractor's plant
7a
Unless otherwise agreed in writing, the delivery and removal of the service item, including any packaging and loading, performed at the customer's request will be carried out at his expense, otherwise the service item will be delivered to the contractor by the customer at the customer's expense and collected from the contractor by the customer or at the customer's expense after the services have been carried out.
7b
The customer bears the transport risk from the moment of handover of the service item.
7c
At the customer's request, the outward and, if applicable, the return transport will be insured against the insurable transport risks, such as theft, breakage, fire, at the customer's expense.
7d
During the time of services at the contractor's plant there is no insurance coverage. The customer is responsible for maintaining the existing insurance cover for the service item of the services, e. g. with regard to fire, mains water, storm and machine breakage insurance. Insurance cover for these risks can only be obtained at the express request and expense of the customer.
7e
If the customer defaults on acceptance, the contractor can charge storage fees for storage in his plant according to the actual additional expenses incurred by the contractor, but at least according to the rates customary at the location. The service item can also be stored elsewhere at the discretion of the contractor, the costs of which are borne by the customer in accordance with the aforementioned principles.
8 Service deadline
8a
The information on the deadlines for the respective services is based on estimates and are therefore not binding.
8b
The agreement of a binding deadline, which must be specified as binding, can only be requested by the customer when the scope of work or service has been precisely determined.
8c
The binding deadline is met if, by the time it expires, the respective service item is ready to be taken over by the customer or, in the case of a contractually agreed test, to be tested, if the service provided in accordance with the contract has ended or the desired goal has been achieved.
8d
Otherwise, the performance time is determined by the agreements between the parties. Prerequisite for the contractor’s compliance is that all commercial and technical questions between the contracting parties have been clarified and the customer has fulfilled all obligations incumbent on him, in particular the provision of the necessary official certificates or permits or the payment of a deposit. If this is not the case, the delivery time is extended appropriately. This does not apply if the contractor is responsible for the delay.
8e
In the case of additional and extension orders placed at a later date or in the case of necessary additional services, the agreed period shall be extended accordingly.
8f
If, due to a delay for which the customer is responsible, costs are incurred by the contractor as a result of waiting times, e. g. travel and accommodation costs for the service staff, the customer shall bear the respective costs.
8g
If the services are delayed due to measures in the context of labor disputes, in particular strikes and lockouts, as well as the occurrence of circumstances, in particular force majeure, for which the contractor is not responsible, the deadline will be reasonably extended insofar as such obstacles demonstrably have a significant impact on the provision of the services; this shall also apply if such circumstances occur after the contractor has defaulted.
8h
Services that require the prior delivery of work materials or work parts by third parties to the contractor or to the place of performance are subject to correct and timely delivery to the contractor, unless the contractor is demonstrably responsible for the incorrect or untimely delivery to the contractor. Clause XII. applies accordingly.
8i
The customer is entitled to set a reasonable deadline for performance after the contractor's performance is due. After this period, the customer is entitled to withdraw from the contract in accordance with the statutory provisions. Otherwise, Clause XII. applies.
8j
The risk of accidental deterioration or loss is transferred to the customer upon handover. This also applies if the customer is in default of acceptance and the contractor has given written notice of readiness for delivery or provision/completion and readiness for acceptance. If the customer requests delivery to a location other than the place of performance or delivery by a third party, the price risk and the transport risk are transferred to the customer as soon as the goods are handed over to the transport company.
9 Acceptance
9a
The customer is obliged to accept the services provided, be it in the form of repair, maintenance, commissioning or other agreed services provided by the contractor. If the services prove not to be in accordance with the contract, the contractor is required to remedy the defect in accordance with Clause XI. insofar as this is possible for the respective services. This does not apply if the defect is insignificant for the interests of the customer or based on a circumstance that is attributable to the customer. If there is an insignificant defect, the customer cannot refuse acceptance. A work is also deemed accepted if the contractor has set the customer a reasonable deadline for acceptance after the completion of the work and the customer has no right to refuse acceptance. Insofar as the commissioning of the parts on which service work has been performed precedes the declaration of acceptance, the acceptance shall be deemed granted upon commissioning.
9b
If acceptance is delayed through no fault of the contractor, the acceptance shall be deemed to have taken place two weeks after notification of the termination of the services.
9c
Upon acceptance, the contractor is no longer liable for recognizable defects, unless the customer has reserved the right to assert a specific defect.
9d
Services are provided by the contractor in accordance with the guidelines of his quality control and deliveries are checked accordingly. If the customer requests further tests, this must be agreed in writing and must be paid for by the customer.
10 Reservation of ownership, Extended lien
10a
The contractor retains ownership of all accessories and spare parts used, as well as exchange units, until receipt of all payments under the respective contract. Further security agreements can be made.
10b
The contractor shall be entitled to a lien on the customer's service items that have come into its possession on the basis of the contract on account of its claim arising from the respective contract. The right of lien may also be asserted on account of claims from previously performed work, spare parts deliveries and other services, insofar as they are connected with the service item. For other claims from the business relationship, the right of lien only applies if these are undisputed or legally binding.
11 Claims for defects
11a
If the contractor owes the customer the creation of a work as agreed and thus contract law applies, the contractor will provide the warranty according to the following stipulations: In the event of deficient services, the contractor is initially entitled and obliged to incremental supplementary performance. If the supplementary performance finally fails, the customer can withdraw from the contract or reduce the remuneration or demand compensation in accordance with the statutory provisions. Claims by the customer for reimbursement of expenses are excluded. The customer's warranty claims due to material or legal defects become statute-barred 12 months after acceptance of the work. In all other respects, Clauses XII. and XIII. apply mutatis mutandis.
11b
If the contractor owes the customer the provision of a service as agreed and thus the service contract law applies, the customer is only entitled to compensation by means of a claim for damages in accordance with Clause XII. if there is a poor performance and this cannot be remedied by the contractor by repeating the service or if a repetition has failed. The contractor must be notified of the poor performance immediately.
11c
Excluded from the warranty are damages due to natural wear and tear, inadequate maintenance by the customer or third parties commissioned by the customer, disregard of operating equipment regulations, excessive or improper use, improper construction and assembly work by third parties as well as other external influences and causes that are not influenced by and are not the responsibility of the contractor.
11d
The warranty rights lapse if the customer or a third party, in the event of the existence of a defect, carries out or attempts to carry out a defect rectification without prior notification and granting the contractor a reasonable period of time to rectify the defect. Furthermore, the warranty rights expire if the customer or a third party makes other changes or additions to the services without the prior consent of the contractor.
12 Contractor's liability, Exclusion of liability
12a
The contractor is not liable for indirect or consequential damage, such as but not limited to loss of use, loss of production or loss of profit, loss of sales, interest costs, loss of information or data.
12b
If, through the fault of the contractor, the service item cannot be used by the customer in accordance with the contract as a result of omitted or faulty execution of suggestions and consultations made before or after conclusion of the contract as well as other contractual ancillary obligations, in particular instructions for operation and maintenance of the service item, the provisions of Clauses XI. And XIIa. and c. shall apply mutatis mutandis to the exclusion of further claims of the customer.
12c
For damages due to breach of contractual and non-contractual obligations, subject to the provision on remedying defects in Clause XI, or on whatever legal grounds, the contractor shall be liable for his legal representatives, corporate bodies and executive employees and other vicarious agents only:
(1) In the event of willful intent.
(2) In the event of gross negligence.
(3) In the event of culpable injury to life, limb or health.
(4) In the case of defects which it has fraudulently concealed or the absence of which it has guaranteed.
(5) In cases of mandatory liability under the Product Liability Act.
In the event of simple negligent violation of essential contractual obligations (cardinal obligations), liability is limited to the foreseeable damage typical for the contract. The liability regulation of this Clause XII. is final, further claims are excluded.
13 Limitation of claims
Warranty claims of the customer are statute-barred one year after acceptance of the work or handover of the item. This also applies to claims for damages and reimbursement of expenses resulting from the defectiveness of the work or poor performance, subject to the provisions of Clause XIIc. (1)-(5). If the contractor renders the services on a building and thereby causes its defectiveness, the statutory deadlines also apply. The warranty period is extended by the duration of the business interruption caused by the defect. Insofar as the contractor remedies a defect after notification thereof in recognition of his obligation to supplementary performance, the limitation period begins again, but ends at the latest 18 months after the start of the limitation period according to the aforementioned paragraph. The acknowledgment must be made expressly; the mere performance of the rectification work shall not be deemed an acknowledgement.
14 Compensation by the customer
If, in the case of services outside the contractor's plant, through nofault of the contractor, the equipment or tools provided by the contractor are damaged or lost at the place where the services are to be performed, the customer is responsible for the compensation of such damage. Damage attributable to normal wear and tear is not taken into account.
15 Applicable law, Place of jurisdiction
15a
The exclusive place of jurisdiction for all disputes arising from the business relationship between the contractor and the customer is the contractor’s registered office. However, the contractor is entitled to take legal action at the customer's headquarters. Mandatory statutory provisions on exclusive places of jurisdiction remain unaffected.
15b
The relationships between the contractor and the customer are exclusively subject to the law of the Federal Republic of Germany. The United Nations Convention on Contracts for the International Sale of Goods of April 11, 1980 (CISG) does not apply.
15c
Insofar as the German and English versions of these general terms and conditions differ, the German version shall prevail.