1.               

Definitions

1.1.            

“Acceptance“, see section 7.2;

1.2.            

“GTC“, see section 2.1;

1.3.            

“BGB“, see section 2.1;

1.4.            

“Secured Claims” see section 8.1;

1.5.            

“HGB“, see section 4.6;

1.6.            

“Customer“, see section 2.1;

1.7.            

“Supervisor“, see section 12.1.1 and

1.8.            

“Goods“, see section 2.3.

2.               

Scope of application

2.1.            

These General Terms and Conditions (“GTC”) apply to all our business relationships with our customers (“Customer“). The GTC only apply if the Customer is an entrepreneur (paragraph 14 of the German Civil Code (“BGB“)).

2.2.            

Our GTC apply exclusively. Deviating, conflicting or supplementary general terms and conditions of the Customer shall only become part of the contract if and to the extent that we have expressly agreed to their validity. This requirement of consent shall also apply if the Customer refers to his general terms and conditions in the context of the order and we have not expressly objected to his general terms and conditions.

2.3.            

These GTC apply to contracts for the sale and/or delivery of movable goods and/or assembly work/installations (“Goods“). Unless otherwise agreed, the GTC shall also apply in the version valid at the time of the Customer’s order or in the version last communicated to him in text form as a framework agreement for similar future contracts, without us referring to them again on a case-by-case basis.

2.4.            

Individual agreements made with the Customer in individual cases (including collateral agreements, supplements and amendments) and information in our order confirmation shall take precedence over these GTC. Subject to proof to the contrary, a written contract or our written confirmation shall be decisive for the content of such agreements.

2.5.            

Legally relevant declarations and notifications by the Customer regarding the contract (e.g. notifications of defects, deadlines, withdrawal or reduction) must be submitted in writing, i.e. in written and text form (e.g. letter, email) to sales@specht-germany.com. Further statutory formal requirements and further evidence (if necessary in case of doubt about the legitimacy of the declaring party) remain unaffected.

2.6.            

If references are made to the validity of statutory provisions, it should be noted that these are only of clarifying significance. The statutory provisions shall apply – even if no corresponding clarification has been made – to the extent that they are not amended or excluded by these GTC.

3.               

Offer and conclusion of contract

3.1.            

Our offers are subject to change and non-binding. This shall also apply if we have provided the Customer with catalogues, technical documentation (e.g. drawings, plans, calculations, references to DIN standards), other product descriptions or documents – also in electronic form. We reserve the title or copyright to all offers and cost estimates submitted by us as well as drawings, illustrations, calculations, brochures, catalogues, models, tools and other documents and aids made available to the Customer. The Customer must not make these items accessible to third parties, disclose them, use them himself or through third parties or reproduce them without our express consent. At our request, he must return these items to us in full and destroy any copies made if they are no longer required by him in the ordinary course of business or if negotiations do not lead to the conclusion of a contract. Excluded from this is the storage of electronically provided data for the purpose of normal data backup.

3.2.            

Information provided by us on the subject matter of the delivery or service (e.g. weights, dimensions, utility values, load-bearing capacity, tolerances and technical data) as well as our representations of the same (e.g. drawings and illustrations) are only approximate, unless the usability for the contractually intended purpose requires exact conformity. They are not guaranteed characteristics, but descriptions or identifications of the delivery or service. Deviations that are customary in the trade and deviations that occur due to legal regulations or represent technical improvements, as well as the replacement of components with equivalent parts, are permissible insofar as they do not impair the usability for the contractually intended purpose.

3.3.            

The order of the Goods by the Customer is a non-binding contractual offer in accordance with §145 BGB. In the event that nothing to the contrary results from the order, we are entitled to accept this contractual offer within 14 (fourteen) days of its receipt by us.

3.4.            

We can accept the contract offer on the part of the Customer either in writing (e.g. by an order confirmation) or by delivery of the Goods to the Customer and/or provision of the service. In the event that we do not accept the Customer’s offer within the period specified in section 3.3., any documents sent to the Customer must be returned to us immediately or destroyed.

4.               

Prices and payment agreements

4.1.            

Unless otherwise agreed in writing in individual cases, our current prices at the time of conclusion of the contract shall apply, plus statutory VAT. Prices are quoted in euros ex works. Unless a fixed price agreement has been made, we reserve the right to make reasonable price changes due to changes in wage, material and distribution costs as well as inflation adjustments for deliveries made 12 (twelve) months or more after conclusion of the contract. An additional agreement shall be concluded for this purpose. When determining the amended price, the contracting parties shall take into account, among other things, the development of the producer price index (industrial products 24-, e.g. for pig iron, crude steel, rolled steel and ferro-alloys) published by the Federal Statistical Office between the conclusion of the contract and the time of the request for adjustment. The Customer shall be at liberty to counter us with cost reductions which a reasonable supplier could have achieved for the specific subject matter of the contract in the same period with reasonable effort.

4.2.            

In the context of a sales shipment, the Customer shall bear the transportation costs ex warehouse and the costs of any transportation insurance requested by the Customer. Any customs duties, fees, taxes and other public charges shall be borne by the Customer.

4.3.            

Payment of the purchase price must be made by the Customer as specified by us in the offer or agreement.

4.4.            

Unless otherwise agreed, payment for Goods shall be made to our account without any deduction (no discount is granted to the Customer), namely:

4.4.1.        

30% (thirty percent) down payment within 7 (seven) calendar days after receipt of the order confirmation by the Customer;

4.4.2.        

the remaining amount within 10 (ten) calendar days after notification that the Goods are ready for dispatch or collection. This provision on the due date of the remaining amount expressly takes precedence over any other due date provisions in these GTC.

4.5.            

The costs specified in the contract for assembly shall be invoiced separately and shall be paid by the Customer to our account without any deduction (the Customer shall not be granted any discount).

4.6.            

However, we are entitled at any time, even in the context of an ongoing business relationship, to make a delivery in whole or in part only against advance payment. We shall declare a corresponding reservation at the latest (subject to section 4.7) with the order confirmation.

4.7.            

The Customer shall be in default if the above payment period expires. During the period of default, the minimum default damages shall be 9% (nine percent) above the respective base interest rate (§288 BGB). We reserve the right to claim further damages from the due date (§353 German Commercial Code (“HGB“)). For each reminder, the Customer shall be charged an additional flat-rate reminder fee of €20 (twenty euros).

4.8.            

We are entitled to execute or render outstanding deliveries or services only against advance payment or provision of security if, after conclusion of the contract, we become aware of circumstances which are likely to significantly reduce the creditworthiness of the Customer and which jeopardize the payment of outstanding claims by the Customer from the respective contractual relationship (including from other individual orders to which the same framework agreement applies).

4.9.            

If it is foreseeable after conclusion of the contract that our claim to payment of the purchase price/remuneration is jeopardized due to the Customer’s inability to pay (e.g. due to an application for the opening of insolvency proceedings), we shall be entitled to refuse performance in accordance with the statutory provisions and, if necessary after setting a deadline, to withdraw from the contract. In the case of contracts for which the manufacture of non-fungible items (custom-made products) is owed, we may declare our withdrawal immediately. The statutory provisions on the dispensability of setting a deadline shall remain unaffected in this respect.

4.10.         

The performance of a modified or additional service by us shall generally require our consent. At our request, the Customer is obliged to conclude a written agreement with us before commencing the work. If the parties are unable to reach an agreement prior to the execution of the work in which the additional remuneration and the effect on execution deadlines are specified, we shall be entitled to a right to refuse performance or a right of retention. In this case, we may refuse to provide the additional or amended services and may also suspend work on the main order.

4.11.         

If a service not provided for in the contract is required, we shall be entitled to special remuneration. This shall also apply if the parties have agreed a lump sum price.

4.12.         

We are entitled to assign the claims to which we are entitled from the business relationship with our Customer to third parties, insofar as the assignment of a claim is not excluded by law.

5.               

Rights of retention

The Customer shall only be entitled to set-off or retention rights in the event that his claim has been legally established or is undisputed and his counterclaim is based on the same contractual relationship. In the event that defects occur within the scope of the delivery, the Customer’s counter-rights, in particular in accordance with section 9.9, sentence 2 of these GTC, shall remain unaffected.

6.               

Delivery period and delay in delivery

6.1.            

The delivery period shall be agreed individually or specified by us upon acceptance of the order.

6.2.            

Partial deliveries and corresponding invoices are permissible unless they are unacceptable for the Customer. If the Customer accepts premature deliveries or deliveries of recognizable excess quantities without objection, our delivery obligation with regard to these Goods shall be deemed fulfilled.

6.3.            

Compliance with agreed delivery periods and dates is subject to all commercial and technical issues having been clarified between the contracting parties and the timely fulfilment of the Customer’s contractual obligations. If one of the above conditions is not fulfilled, the delivery period shall be extended accordingly. This shall not apply if we are responsible for the non-fulfilment of the condition. Further rights of us due to breach of a contractual obligation by the Customer remain unaffected.

6.4.            

If we are unable to meet binding delivery deadlines for reasons for which we are not responsible (non-availability of the service), we shall inform the Customer of this immediately and at the same time inform the Customer of the expected new delivery deadline. If the service is also not available within the new delivery period, we are entitled to withdraw from the contract in whole or in part; we will immediately reimburse any consideration already provided by the Customer. Non-availability of the service exists, for example, in the event of late delivery by our suppliers, if we have concluded a congruent supply arrangement, in the event of other disruptions in the supply chain, for example due to force majeure or if we are not obliged to procure in individual cases. In the event of hindrances of a temporary duration, the delivery or performance periods shall be extended or the delivery or performance dates shall be postponed by the period of the hindrance plus an appropriate ramp-up period. If the Customer cannot reasonably be expected to accept the delivery or service as a result of the delay, he may withdraw from the contract by immediate written notice to us.

6.5.            

Whether we are in default of delivery shall be determined in accordance with the statutory provisions. However, the prerequisite for a default of delivery on our part is a notice with a reasonable deadline set by the Customer. In the event of a delay of delivery, the Customer may claim a lump-sum compensation for the damage caused by the delay. The lump-sum compensation shall amount to 0.3% (zero-point three percent) of the net price (delivery value) for each completed calendar week of default, but not more than a total of 3% (three percent) of the delivery value of the Goods delivered late. We reserve the right to prove that the Customer has suffered no damage or only less damage than the above lump sum.

6.6.            

The Customer’s rights pursuant to section 11 of these GTC and our statutory rights, in particular in the event of an exclusion of the obligation to perform (e.g. due to impossibility or unreasonableness of performance and/or subsequent performance), shall remain unaffected.

7.               

Delivery, acceptance, transfer of risk, default of acceptance

7.1.            

Delivery shall be ex works, which is also the place of performance for the delivery and any subsequent performance. At the Customer’s request and expense, the Goods will be shipped to another destination (sales shipment). Unless otherwise agreed, we are entitled to determine the type of shipment (in particular transport company, shipping route, packaging) ourselves.

7.2.            

“Acceptance” within the meaning of these GTC is a process in which the conformity of the Goods or a part of the Gods with the contract is bindingly determined for both parties. If Acceptance is to take place, the subject matter of the contract shall be deemed to have been accepted if

7.2.1.        

the delivery and, if we also owe the assembly, the assembly has been completed and we have informed the Customer of this with reference to the fictitious acceptance in accordance with this section 7.2 and have requested Acceptance; or

7.2.2.        

12 (twelve) working days have passed since delivery or assembly or the Customer has started to use the Goods (e.g. has put the delivered system into operation); and

7.2.3.        

the Customer has failed to accept the Goods within this period for a reason other than a defect notified to us which makes the use of the Goods impossible or significantly impairs them.

7.3.            

The risk of accidental loss and accidental deterioration of the Goods shall pass to the Customer or the carrier at the latest upon handover (whereby the start of the loading process shall be decisive). In the case of sale by dispatch, however, the risk of accidental loss and accidental deterioration of the Goods as well as the risk of delay shall already pass upon delivery of the Goods to the carrier, the freight forwarder or the person or institution otherwise designated to carry out the shipment. If acceptance has been agreed, this shall be decisive for the transfer of risk. In all other respects, the statutory provisions of the law on contracts for work and services (Werkvertragsrecht) shall also apply accordingly to an agreed acceptance. Furthermore, the risk shall pass to the Customer if he is in default of acceptance. 

7.4.            

In the event that the Customer is in default of acceptance or our delivery is delayed for other reasons for which the Customer is responsible (e.g. import documents), we shall have a claim against the Customer for compensation for the damage incurred, including additional expenses (e.g. storage costs). If this is the case, we shall charge the Customer a flat-rate compensation amounting to 0.5% (zero-point five percent) of the purchase price of the Goods affected by the delay in acceptance per month (beginning with the delivery period or, if no delivery period is specified, with the notification that the Goods are ready for dispatch). Proof of higher damages and our statutory claims (in particular reimbursement of additional expenses, reasonable compensation, termination) shall remain unaffected; however, the lump sum shall be offset against further monetary claims. However, the Customer reserves the right to prove that we have incurred no damage at all or only significantly less damage than the above lump sum.

7.5.            

We will only insure the shipment against theft, breakage, transport, fire and water damage or other insurable risks at the express request of the Customer and at the Customer’s expense.

8.               

Retention of title

8.1.            

We reserve title to the delivered Goods until full payment of all our current and future claims arising from the purchase contract and an ongoing business relationship (“Secured Claims“).

8.2.            

Until the Secured Claims have been paid in full, the Goods subject to retention of title may neither be pledged to third parties nor assigned as security. The Customer must inform us immediately in writing in the event that an application is made to open insolvency proceedings or if third parties have access to the Goods belonging to us (e.g. seizures). If the third party is not in a position to reimburse us for the judicial and extrajudicial costs of an action pursuant to § 771 of the German Code of Civil Procedure, the Customer shall be liable for the loss incurred by us.

8.3.            

In the event of a breach of contract by the Customer, in particular non-payment of the purchase price due, we shall be entitled to withdraw from the contract in accordance with the statutory provisions and/or to demand the return of the Goods on the basis of the retention of title. The demand for return does not at the same time include a declaration of withdrawal; rather, we are entitled to merely demand the return of the Goods and reserve the right to withdraw from the contract. In the event that the Customer does not pay the purchase price due, we must have unsuccessfully set the Customer a reasonable deadline for payment before asserting these rights. This shall only apply insofar as the setting of such a deadline is not dispensable according to the statutory provisions.

8.4.            

The Customer is obliged to treat the Goods with care as long as ownership has not yet been transferred to him. In particular, he shall be obliged to insure them adequately at his own expense against theft, fire and water damage at replacement value. If maintenance and inspection work has to be carried out, the Customer must carry this out in good time at his own expense.

9.               

Claims for defects by the Customer

9.1.            

The statutory provisions shall apply to the Customer’s rights in the event of material defects and defects of title (including incorrect and short delivery as well as improper assembly/installation or defective instructions), unless otherwise specified below. Claims arising from supplier recourse are excluded if the defective Goods have been further processed by the Customer or another entrepreneur, e.g. by installation in another product.

9.2.            

We only provide a guarantee if this is expressly declared by us.

9.3.            

We shall not be liable for defects which the Customer is aware of or is grossly negligent in not being aware of at the time of conclusion of the contract in accordance with §442 BGB. 

9.4.            

Claims for defects on the part of the Customer shall only exist if the Customer has complied with his statutory inspection and notification obligations (§377 and §381 HGB). In the case of Goods intended for assembly or other further processing, an inspection must always be carried out immediately prior to processing. If a defect is discovered during delivery, inspection or at any later time, we must be notified immediately in writing. In any case, obvious defects must be reported to us in writing within 4 (four) working days of delivery and defects not recognizable during the inspection within the same period of time from discovery; if the defect was already recognizable to the Customer at an earlier point in time during normal use, this earlier point in time shall, however, be decisive for the start of the complaint period. If the Customer fails to carry out the proper inspection and/or report defects, our liability for the defect not reported or not reported on time or not reported properly shall be excluded in accordance with the statutory provisions. If the Goods were intended for fitting, mounting or assembly, this shall also apply if the defect only became apparent after the corresponding processing as a result of non-compliance with or breach of one of these obligations. In this case, the Customer shall not be entitled to any claims for compensation for installation and removal costs.

9.5.            

In the event of defects in components from other manufacturers which we are unable to remedy for licensing or factual reasons, we shall, at our discretion, assert our warranty claims against the manufacturers and suppliers for the account of the Customer or assign them to the Customer. Warranty claims against us for such defects shall only exist under the other conditions and in accordance with these GTC if the legal enforcement of the aforementioned claims against the manufacturer and supplier was unsuccessful or is futile, e.g. due to insolvency. For the duration of the legal dispute, the limitation period for the Customer’s relevant warranty claims against us shall be suspended.

9.6.            

The warranty shall not apply if the Customer modifies the Goods or has them modified by third parties without our consent and this makes it impossible or unreasonably difficult to remedy the defect. In any case, the Customer shall bear the additional costs of remedying the defect resulting from the modification.

9.7.            

A defect shall not be deemed to exist in the case of insignificant deviations from the agreed quality, insignificant impairment of usability, natural wear and tear or damage arising after the transfer of risk as a result of incorrect or negligent handling, excessive strain, unsuitable equipment, defective construction work, unsuitable building ground or due to special external influences not assumed under the contract, or in the case of non-reproducible software errors.

9.8.            

Any delivery of used items agreed with the Customer in individual cases shall be made to the exclusion of any warranty for material defects.

9.9.            

If the delivered Goods are defective, we shall be entitled to choose whether we provide subsequent performance by remedying the defect (rectification) or by delivering a defect-free item (subsequent delivery). In the event that the type of subsequent performance chosen by us is unreasonable for the Customer in the individual case, the Customer may refuse it. However, we reserve the right to refuse subsequent performance under the statutory conditions. In addition, we are entitled to make the subsequent performance to be provided by us dependent on the Customer paying the purchase price due.

9.10.         

The Customer shall enable us to inspect a notified defect on site and grant us access at any time. The Customer must give us the time and opportunity required for the subsequent performance owed, in particular he must hand over the Goods complained about to us for inspection purposes. In the event of a replacement delivery, the Customer must return the defective item to us in accordance with the statutory provisions. However, the Customer is not entitled to a claim for return.

9.11.         

Unless we are contractually obliged to do so, subsequent performance shall not include the removal, dismantling or uninstallation of the defective item or the installation, fitting or installation of a defect-free item. This shall not affect the Customer’s claims for compensation for installation and removal costs. If we bear installation and removal costs at our own discretion, we shall do so without prejudice to the warranty provisions and without acknowledging any legal obligation.

9.12.         

We shall reimburse the expenses which are necessary for inspection purposes and for subsequent performance (transport, labour and material costs as well as any dismantling and installation costs) in accordance with the statutory provisions and these GTC in the event that a defect exists. However, we may demand reimbursement from the Customer for costs incurred due to an unjustified request to remedy a defect in the event that the Customer knew or could have recognized that there was in fact no defect.

9.13.         

The Customer has the right to remedy the defect himself and to demand reimbursement of the expenses objectively necessary for this if there is an urgent case (e.g. in the event of danger to operational safety or to prevent disproportionate damage). The Customer must inform us immediately in the event of self-performance. In the event that we would be entitled to refuse subsequent performance in accordance with the statutory provisions, the Customer has no right to self-performance.

9.14.         

If the supplementary performance has failed or a reasonable deadline to be set by the Customer for the supplementary performance has expired unsuccessfully or is dispensable according to the statutory provisions, the Customer may withdraw from the purchase contract or reduce the purchase price. In the case of an insignificant defect, however, there is no right of withdrawal. At our request, rejected Goods must be returned to us carriage paid.

9.15.         

Claims of the Customer for reimbursement of expenses in accordance with §445a paragraph 1 BGB are excluded.

9.16.         

Even in the event of a defect, claims for damages or claims for reimbursement of futile expenses on the part of the Customer (§ 284 BGB) shall only exist in accordance with sections 9 and 10 and are otherwise excluded.

9.17.         

The parties agree that the place of subsequent performance shall be the registered office of Te So Ten Elsen GmbH & Co KG in Sonsbeck.

10.             

Statute of limitations

10.1.         

The general limitation period for claims resulting from material defects or defects of title is 1 (one) year from delivery, in deviation from paragraph 438 (1) No. 3 BGB. In the event that acceptance has been contractually agreed, the limitation period shall commence upon acceptance. This shall apply subject to the other special statutory provisions on the limitation period.

10.2.         

The above limitation periods of the sales law shall also apply to contractual and non-contractual claims for damages of the Customer based on a defect of the goods, unless the application of the regular statutory limitation period according to §§195 or 199 BGB would lead to a shorter limitation period in individual cases. Claims for damages by the Customer pursuant to sections 11.1 and 11.2 as well as those under the Product Liability Act shall become time-barred exclusively in accordance with the statutory limitation periods.

11.             

Other liability

11.1.         

Unless otherwise stated in these GTC including the following provisions, we shall be liable in the event of a breach of contractual and non-contractual obligations in accordance with the statutory provisions.

11.2.         

We shall be liable for damages – irrespective of the legal grounds, in particular for impossibility, delay, defective or incorrect delivery, breach of contract, breach of duties in contract negotiations and tort, insofar as fault is involved in each case – within the scope of fault-based liability in the event of intent and gross negligence. In the event of simple negligence, we shall only be liable, subject to statutory limitations of liability (e.g. care in our own affairs; insignificant breach of duty):

11.2.1.     

for damages resulting from injury to life, limb or health;

11.2.2.     

for damages arising from the breach of a material contractual obligation (an obligation whose fulfilment is essential for the proper execution of the contract and on whose compliance the contractual partner regularly relies and may rely); in this case, however, our liability is limited to compensation for foreseeable, typically occurring damages. Indirect damage and consequential damage resulting from defects in the Goods shall also only be eligible for compensation if such damage is typically to be expected when the Goods are used as intended.

11.3.         

We are expressly not liable if and to the extent that the Customer suffers damage as a result of not or not sufficiently fulfilling his obligation to cooperate, in particular if an assembly is not permitted at the intended assembly site for legal reasons, or if the Customer is partly to blame, i.e. if he is (partly) responsible for the damage intentionally or negligently.

11.4.         

The risks arising in accordance with sections 11.2 and 11.3 shall also apply to third parties and in the event of breaches of duty by persons whose fault we are responsible for in accordance with statutory provisions. Insofar as a defect has been fraudulently concealed and a guarantee for the quality of the Goods has been assumed, the limitations of liability shall not apply. This also applies to claims of the Customer under the product liability regime.

11.5.         

The Customer may only withdraw from or terminate the contract due to a breach of duty that does not consist of a defect if we are responsible for the breach of duty. A free right of termination of the Customer (in particular according to §§ 650, 648 BGB) is excluded. In all other respects, the statutory requirements and legal consequences shall apply.

11.6.         

Insofar as we provide technical information or act in an advisory capacity and this information or advice is not part of the contractually agreed scope of services owed by us, this is done free of charge and to the exclusion of any liability.

12.             

Special features during assembly

12.1.         

Supervisor

12.1.1.     

If this is provided for in the contract, our mechanic on the assembly site (the “Supervisor“, this term can refer to one or more persons) serves as assembly support, but all assembly work is to be carried out by the Customer on his own responsibility. For this purpose, the Customer shall provide, free of charge, sufficiently qualified personnel equipped with suitable tools for the entire duration of the assembly.

12.1.2.     

The Supervisor has a daily working time of 9 (nine) hours and works a maximum of 6 (six) days/week. A maximum of 30 (thirty) consecutive working days are planned per Supervisor assignment, after which the Supervisor enjoys 2 (two) weeks home leave. Unless otherwise contractually agreed, no replacement Supervisor will be provided during this time.

12.1.3.     

Tools and other aids carried by the Supervisor are not part of the contract. They shall remain our property. They shall be imported, exported and returned to us by the Customer at the Customer’s expense (transportation costs, customs duties, customs clearance costs, taxes and levies) and risk.

12.2.         

Dates and execution period

12.2.1.     

The execution period begins on the contractually agreed date and with clarification of all technical questions, but not before the Customer has provided the plans, documents, approvals, clearances, permits (if required; the Customer must submit these to us at our request; the Customer bears the risk of obtaining and maintaining such approvals, clearances and permits) and before receipt of the agreed payments.

12.2.2.     

Compliance with the execution deadline shall be subject to the timely and proper fulfilment of the Customer’s contractual obligations.

12.2.3.     

In all cases of impediments to assembly for which we are not responsible, regardless of their nature, we are entitled to demand from the Customer a reasonable extension of the execution deadlines and additional remuneration to compensate for additional services and/or costs. This includes, among other things, a lump sum of €900 (nine hundred euros) per day per Supervisor and, if applicable, travel expenses (see section 12.1.2) between Sonsbeck and the place of performance for the Supervisor.  

12.3.         

Duty to cooperate

12.3.1.     

If the Supervisor travels by plane to the assembly site, the Customer shall organize smooth transportation of the Supervisor between the airport and the place of performance at his own expense.

12.3.2.     

The Customer must always confirm the working hours and the execution and completion of the work to the Supervisor on the travel reports to be submitted.

12.3.3.     

If the performance of the contract requires permits/approvals/notifications etc. under public law, the Customer shall obtain these in good time at its own expense and risk. The Customer undertakes to obtain in good time, at its own expense and risk, all necessary permits/ approvals/ notifications etc. required (a) for the entry, stay, activity and departure of the Supervisor and (b) for the (temporary) import and export of the equipment and tools and (c) for the import of the items belonging to the service. Any customs duties, taxes and other charges as well as fees, security deposits, deposits, amounts to be deposited, etc., shall be borne by the Customer by direct payment or by reimbursement to us on first demand.

12.3.4.     

The Customer undertakes, at its own expense and risk, to continuously monitor all legally prescribed limit values and to comply with the test controls. The type and scope of all testing measures must be documented by the Customer.

12.3.5.     

In the case of assembly work, the Customer shall provide the following services at its own expense, in good time and throughout the work and at its own risk for the entire duration of the assembly to ensure smooth execution of the contract:

12.3.5.1.  

In the case of assembly work lasting more than one day, the Supervisor shall be provided with appropriate and safe accommodation and healthy meals by the Customer in the vicinity of the place of performance;

12.3.5.2.  

the Supervisor has access to sanitary facilities including a hot shower, functioning internet and, if necessary, medical care that meets international standards;

12.3.5.3.  

the Customer must provide us with the drawings and other documents required for the execution of the contract;

12.3.5.4.  

the Customer must complete the preparatory work in good time. Access routes to the assembly site must be suitable for the necessary transportation of the items, equipment, tools, cranes and other lifting equipment ancillary to the performance. They must also be safe. In addition, the personnel to be provided by the Customer and all necessary items must be available at the place of use at the start, e.g.

·                mechanical transportation on the construction site for loading and unloading as well as for transporting the Goods (cranes, lifting equipment, forklift trucks, pallet trucks, forklift machines including operating personnel, etc.);

·                scaffolding and auxiliary equipment, such as protective scaffolding and safety devices;

·                for the wiring of electrical systems and commissioning, it is essential that an authorized electrical specialist is commissioned by the Customer; this is also paid for by the Customer. The control cabinets are pre-assembled and ready for use. The Customer must ensure that the control cabinets are connected to the power supply by a qualified electrician. The Customer must also connect the switches or motors to the terminal strip as required. If we undertake the electrical installation – this must be expressly agreed in the contract and is not part of the usual assembly service – this does not include the connection of the delivered system to the local power grid. This must be carried out by a specialist electrical company commissioned and paid for by the Customer;

·                setting up the necessary storage and workplaces on the construction site, as well as a rubble collection area including appropriate waste containers etc.;

·                supply of the construction site with water, energy and electricity, connections and lines for water and energy (cables, hoses), as well as a sufficient number of power distribution boxes;

·                the personnel responsible for subsequent monitoring, operation and maintenance of the system must – as far as possible – be present during assembly.

12.3.5.5.  

Appropriate conditions must be met in the barn/on the construction site, e.g.

·                the Customer must ensure that the temperature does not fall below 5°C and does not exceed 30°C in appropriate weather conditions and that the construction site is sufficiently ventilated and illuminated. In addition, the components for processing must be protected from extreme sunlight (to prevent heating of parts) and cold (to prevent freezing of parts);

·                the Supervisor shall be given the opportunity to commence his activities at the agreed time and to perform them during the time deemed to be normal daily working hours. The Supervisor shall also be permitted to perform his work outside the normal daily working hours if this appears necessary to us and unless the Customer immediately prohibits this;

·                the Supervisor must be provided with a clean, air-conditioned and well-lit room with washing facilities and lockable lockers for their use during breaks.

12.3.6.     

On completion of the assembly, the operating personnel must be available in good time for instruction.

12.3.7.     

Clean-up work (including the removal of debris containers and disposal of any end products) shall be carried out by the Customer at his own expense.

12.3.8.     

The assumption of own services by the Customer requires our prior written consent.

12.4.         

Remuneration

12.4.1.     

Unless expressly agreed otherwise in the contract, we are entitled to issue partial invoices at appropriate intervals according to the progress of the assembly work. Invoices shall be issued at least once (once) a month. We are also entitled to issue invoices at shorter intervals (every 2 (two) weeks).

12.4.2.     

The Customer shall bear all costs for necessary remedial measures which become necessary due to incorrect or incomplete drawings or other documents or instructions of the Customer.

12.4.3.     

Unless otherwise agreed, for which the client is obliged to provide evidence, the remuneration for services shall be based either on the number of hours worked or, if a daily flat rate has been agreed, on the number of days worked. The remuneration for both options (hourly rate or daily rate) is staggered according to the qualification and specialty of the Supervisor used and the time of day or the days of the week on which the service is provided. In addition, to the extent applicable we are entitled to “trigger rates” (lump sums for meals, accommodation, travel, visa/work permit) and reimbursement of travel expenses.

12.4.4.     

Unless otherwise agreed or covered by a trigger rate, the Customer shall pay separately for the time required for preparation and formalities relating to outward and return journeys and other journeys; the daily outward and return journey between the accommodation and the place of performance; bridging times during which work is prevented due to circumstances for which we are not responsible. Outward and return journeys in the above sense are journeys from Sonsbeck to the place of performance and back.

12.4.5.     

If the service is delayed due to a breach of the Customer’s duty to cooperate and other obligations or for other reasons for which the Customer or a third company commissioned by the Customer is responsible, the Customer shall compensate us for any additional damage incurred.

12.4.6.     

We are entitled to increase the agreed remuneration appropriately if the Customer requests changes to the subject matter of the contract after conclusion of the contract and these result in additional expenditure. We shall provide evidence of the additional expenditure on request.

13.             

Export control clause

The fulfilment of our obligations under the respective contract is subject to the proviso that there are no obstacles to fulfilment due to applicable export control regulations, in particular embargoes or other sanctions under applicable law. We shall not be liable for obstacles to licensing in the country of destination that do not apply in Germany, unless the Customer has expressly pointed this out to us prior to conclusion of the contract. The Customer undertakes to provide all information and documents required for the export or shipment. Delays for which we are not responsible due to export inspections or approval procedures do not constitute a delay on our part. Any deadlines and delivery times shall be extended accordingly. The Customer must comply with the applicable provisions of national and international (re-)export control law when passing on the objects of purchase delivered or provided by us to third parties in Germany and abroad.

14.             

Severability clause, choice of law, place of jurisdiction, language

14.1.         

Should a provision be or become invalid or unenforceable, this shall not affect the validity of the remaining provisions. The parties undertake to replace the invalid or unenforceable provision with a valid provision that comes as close as possible to the content and economic purpose of the invalid provision.

14.2.         

These GTC and the contractual relationship between us and the Customer shall be governed by the law of the Federal Republic of Germany to the exclusion of international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods.

14.3.         

To the extent permitted by law, the exclusive place of jurisdiction shall be at our registered office in Sonsbeck. However, in all cases we shall also be entitled to bring an action at the place of performance of the delivery obligation in accordance with these GTC or an overriding individual agreement or at the Customer’s general place of jurisdiction. Overriding statutory provisions, in particular regarding exclusive jurisdiction, shall remain unaffected.

14.4.         

Regardless of the language into which these GTC are translated, the binding version thereof shall be exclusively the German version.