Terms of Service
These General Terms and Conditions (“GTC)“ shall be applied by us towards legal entities or natural persons who enter into contract with us (“Customer”). All present and future performances of services or delivery orders (by us to Customer, (“Services”) shall solely be governed by these GTC, if not agreed on in another way.
For certain Services, individually agreed on contractual conditions may apply, if agreed upon by us. In this case, they shall have precedence over these GTC. We shall not acknowledge any general terms and conditions of the Customer, neither to those of third parties or organizations implied by the Customer, unless we give express consent thereto in written form.
Even if a reference is given by us to a letter or an Email of a Customer that contains its general terms and conditions or those of a third party, this shall not constitute an acceptance of those general terms and conditions. Neither shall the acceptance of supplies, deliveries or services by Customers or its contractual partners constitute an acceptance of the counterparty’s general terms and conditions or those of any third party.
2. Offers, order confirmation, Export restrictions
All our offers shall be non-binding, if not declared on in a deriving manner in an acceptance of order by us. All information given in the offer concerning details of the Services as well as any description (such as, but not limited to, performance data or consumption data) no matter in which form, shall in no way constitute a warranty or guarantee, but shall only describe the Services in general. Variations according to customs and useage in the industry or that are due to legally binding rules shall be deemed as accepted, if they do not hinder the usability of the Services and/or goods for the contractually agreed on purpose.
It is an essential contractual obligation of the Customer to self-assess if the goods or Services contained in the Order to us are subject of export and/or import limitations, the latter at the place of performance or delivery. It has to assess this with the utmost diligence at the latest after nomination of the final destination of the Order by it. Should export or import restrictions exist for Services, the Customer shall inform us immediately upon Order placement.
The price of the Services covers only the agreed on scope of Services or goods. Any increase in quantity or quality or additional services ordered will be additionally charged. If any of the Services will be performed or goods delivered later than four months after conclusion of contract and in the meantime prices of our subsuppliers or contractors have increased or any public taxes or levies to be borne by us have increased or any new public levies have been introduced, then we are entitled to raise the price accordingly, if not explicitly agreed on in a deriving way. If demanded by the Customer, we will verify the cause of the price increase accordingly.
Our invoices are all net and immediately payable if not agreed on in a deriving way. There will be no cash discounts if not explicitly agreed on. Payments are to be made solely to our bank account. The setting-off by the Customer is only accepted against uncontested or legally effective determined claims. Delay of payment by the Customer shall entitle us to claim the proven interest rate or the interest rate by statutory law. Any statutory rights to withhold payments are reserved.
The Customer shall not be permitted to assign rights or obligations derived from this contract without or written consent.
The Customer herewith declares its consent to receivables and liabilities in respect of us being offset. All prerequisites shall be assessed subject to the point of time the receivables were generated and not the due date of said receivables. The agreement to offset shall relate to the balance of current accounts.
7. Performance of Services
We perform our Services through or own personnel, or, as the case may be, via our subcontractors. If the Services are performed at the premises of the Customer, it is responsible for a proper instruction regarding local conditions to our staff our subcontractors, in particular for all HSE and/or safety instructions. It is an essential contractual obligation of the Customer to clearly define the subsections of scope of supplies and the respective battery limits between the service providers.
8. Cooperation of Customer
The Customer is responsible for the obtaining of all public approvals at the place of performance and/or the respective project, such as, but not limited to, building permit, planning permission, commercial permission, environmental permission. Likewise the Customer shall be responsible for the fulfilment of all legal requirements at the place of the respective project to legally enable the performance of our Services. If our collaboration is legally necessary to obtain a public permission or for any other legal process, the Customer will notify us in due time.
The Customer is responsible for the overall supervision of the particular subsections project and the necessary communication between the interfaces of the third party service providers. The Customer is entitled to survey the performance of our Services, provided noticing us of this in due time in advance and to give orders concerning our ordered Services.
We have no obligation to assess the technical correctness and/or practicality of those orders by the Customer and we are not liable for any damages occurring out of them.
9. Acceptance of works
As far as the individual orders contain deadlines, the Customer has to perform partial acceptance tests. After the finalization of our Services, the Customer shall together with us inspect our works and declare his final acceptance of our Services. The acceptance will be carried out collectively by both parties and will be mutually recorded in the acceptance protocol by both parties. If the Customer wishes to claim defects or incompleteness of our Services, those will be recorded in the acceptance protocol and will be rectified in a timely manner by us. For all other defect free Services the acceptance will be declared. If the Customer refuses the acceptance of Services for other than substantial parts of the Services, than our Services shall be deemed as accepted 14 days after notification by us (legal fiction of acceptance).
10. Delivery and Dispatch
Deliveries will be made according to the respective INCOTERM 2010 clause agreed on. If the delivery or the dispatch will be delayed due to a cause attributable to the Customer, such as, but not limited to, lacking or incomplete customs documentation, the risk of loss or deterioration of the delivered goods shall be at the Customer from the day of readiness for dispatch on. Storage costs after readiness for dispatch will be borne by the Customer.
Transport-packaging and any other packaging will not be withdrawn by us after delivery. The Customer shall be responsible for any dispose or recycling of those. Raises in freight rates after conclusion of the order as well as additional costs due to hindrances or delays not induced by us shall be borne by the Customer. Deliveries will only be insured if the Customer expressly orders this and the costs shall be borne by him.
11. Retention of title
If we provision parts to the Customer, we keep the retention of title to those parts. Alteration or transformation of those parts to a new product is made for us. If our reserved property is mixed in processing it with other goods to a new product, we shall acquire pro rata property to the new product in relation proportionally to the value of our reserved property in relation to the other processed goods at the time of processing. If the processing of the products in the way that the product of the Customer is to be seen as the main product, it shall be deemed as agreed that the Customer shall transfer us title in common of the ownership of the new product; the Customer shall be responsible for taking care of our ownership.
As far as our liens covered by the retention of title exceed the worth of the goods covered by more than 10 % of the purchase price, we shall, on demand of the Customer, release the amount of goods exceeding 10 % of the purchase price of those goods.
12. Intellectual property, rights of use and exploitation, reference of project by us
The Services shall be free from any third parties claims for intellectual property and fully useable for the purpose of the contract. If any licenses or rights to use are missing after performance of our Services, we will procure those at our expense and transfer the rights to the Customer.
The intellectual property and industrial property rights of the delivered items and/or Services shall remain with us. This applies specifically for any typified data, such as, but not limited to, drawings or designs.
If the performance of Services should lead to the development of new intellectual property, the parties shall negotiate in good faith about the transfer of those rights and the license fees.
The Customer allows us to use its project as a reference to us on our homepage. The project will be mentioned there either in an abstract way without naming the Customer or in a concrete way by naming the Customer and the performed Services or delivered items while keeping all confidential information secret. In doing so the trademark and logos of the Customer will be used, nevertheless mentioning the intellectual property of the Customer of those. The Customer is always free to prohibit a concrete naming of its firm or of the project, provided it can proof the infringement of substantial interests by the naming of the firm or the project.
13. Guarantee, Warranty, Notice of defect and Liability
Warranty claims by the Customer will only be accepted under the precondition that the Customer has his obligations to immediately notify the defect to us (German “Mängelrüge”) according to §§ 377 German commercial code (HGB). Notifications of Defect by the Purchaser shall be given in written form without undue delay. We shall be given the opportunity, to our discretion, to rectify or to perform the Services for a second time or to replace the defective good (“Nacherfüllung”) within a reasonable period of time. In case of rectification all necessary costs for the rectification shall be borne by us. The warranty period runs for 18 months starting from the fulfilment of our Services, ending the latest 12 months after initial startup. In case the initial start up cannot be carried out due to reasons beyond our control the warranty period shall terminate not later than 15 month after performance of our Services.
14. Claims for damages
We shall not be liable to the Customer for any claims for damages, unless those were caused by gross negligence or willful misconduct by or our agents or legal representatives. Any damages not excluded by the above mentioned as well as claims for damages not being caused by willful misconduct of essential contractual obligations are limited to the foreseeable typical damage. Any liability for loss of use, opportunity or production, loss of interest, earnings or profit, holding or financial costs, business interruption or any indirect or consequential losses shall be excluded. This limitation of liability shall be exempted in the case loss of life or limb or in a case of mandatory statutory liability.
15. Force Majeure
The term “Force Majeure” includes all events beyond our reasonable control, such as, but not limited to: natural disasters, flooding, war, terror, explosions, riots, civil unrests, inevitable official orders, embargos or ban on imports, or any other such events beyond our reasonable control. In a case of force majeure we shall be released from our obligations as long as we cannot fulfill our obligations due to such events. We shall notify the Customer in due time of a Force Majeure event and the estimated amount of hindrances and delay caused by it. Additionally, we will make all reasonable efforts to resurge the performance of our Services.
If the Force Majeure event lasts more than six (6) months, we shall negotiate with the Customer how to proceed with the Services or not and by whom the resulting costs and obligations shall be borne.
16. Choice of law and place of venue
The relationship between the parties shall be governed by German law to the exclusion of the convention of the international sale of goods and to the exclusion of the principles of conflict of law, especially to the exclusion of the regulation (EC) 593/2008 (“Rome I”) and to the exclusion of the regulation 864/2007 (“Rome II”). Exclusive place of venue shall be Cologne, Germany.12. Intellectual property, rights of use and exploitation, reference of project by us