General Conditions of Contract of Fibro Läpple Technology GmbH (hereinafter referred to as “GCC”)

Version: August 2014

Section 1 General, scope of application

(1) These GCC apply to all our business relations with our customers (hereinafter referred to as “Customers”, jointly referred to as “Contractual Parties”). The GCC apply only if the Customer is a commercial entity (Section 14 of the German Civil Code, BGB), a corporate body under public law, or a special entity subject to public law.

(2) The GCC apply specifically to contracts regarding the sale and/or delivery of goods and chattels (hereinafter referred to as “Goods”), regardless of whether we produce the Goods ourselves or purchase the Goods from suppliers (Sections 433, 651 BGB), including contracts for assembly, repairs and construction. The respective version of the GCC also applies as a framework agreement for future contracts regarding the sale and/or delivery of Goods, assembly, repairs and construction with the same Customer without requiring reference to such in each individual case; we shall immediately inform the Customer of any modifications to our GCC.

(3) Our GCC apply exclusively. Deviating, contrary or supplementary GCC of the Customer shall become a contractual component only if and insofar as we have expressly approved the validity of such. This approval requirement applies in every case, for example even if we fulfil delivery to the Customer without reservation despite being aware of the Customer’s general terms and conditions.

(4) Individual agreements reached with the Customer in individual cases (including ancillary agreements, supplements and modifications) always have priority over these GCC. The content of such agreements shall be governed by a written agreement or our written confirmation.

(5) Legally relevant declarations and notifications which the Customer is required to submit to us after conclusion of the contract (e.g. deadlines, notifications of defects, declaration of withdrawal or reduction) must be in writing to be valid. Our installers are not authorised to issue legally binding declarations. We will specify the authorised signatories in the contracts. If this is not the case, then only the executive management or authorised representatives shall be authorised signatories.

(6) The Goods or individual components thereof may be subject to provisions and limitations under export law. The Customer is solely responsible for compliance with such. We reserve the right to additional export control. For this purpose, we shall be entitled to forward the name and address of buyers, suppliers and other persons involved in the execution of the contract to third parties for security screening. Upon request for proposal, the Customer must furthermore state whether forwarding or resale of the Goods or individual components thereof to a non-EU country is intended. The Customer shall ensure that the Goods or individual components thereof shall only be used outside of military applications and not in connection with nuclear technology. The Customer shall be liable in case of violations against the above restrictions on use. If new findings regarding the intended use or final destination of the Goods or individual components thereof arise within the course of order processing, the Customer must inform us of such immediately.

(7) References to the validity of statutory regulations shall be for clarification purposes only. Therefore, statutory regulations also apply without such clarification, provided that they are not directly changed or expressly excluded in these GCC.

Section 2 Conclusion of contract

(1) Our quotations are conditional and non-binding. This also applies if we have supplied the Customer with catalogues, technical documentation (e.g. drawings, plans, calculations, computations, references to DIN standards), samples, cost estimates, other product descriptions or documents – even in electronic form.

(2) The Customer’s order of Goods shall be deemed to be a binding offer of contract. Unless otherwise indicated in the order, we shall be entitled to accept this offer of contract within three weeks of our receipt of such.

(3) Unless otherwise agreed, acceptance shall be declared in writing (e.g. the order confirmation). Unless contested, this order confirmation shall govern the content of the contract and the scope of services.

(4) We reserve property rights and copyrights to all catalogues, technical documentation, samples, cost estimates, other product descriptions or documents – even in electronic form – provided to the Customer; they may not be made accessible to third parties.

Section 3 Deadlines and delays

(1) Delivery deadlines shall be based on the agreements between the Contractual Parties or indicated by us upon acceptance of the order. The term “delivery deadlines” also includes deadlines for assembly, repair and construction. Our fulfilment of delivery deadlines shall be conditional upon all administrative and technical questions being clarified between the Contractual Parties and the Customer’s fulfilment of all their obligations, e.g. provision of the required official certificates or approvals and provision of a down payment. If this is not the case, delivery deadlines shall be delayed accordingly. This does not apply if we are responsible for the delay.

(2) Delivery deadlines shall be deemed to have been fulfilled if the Goods have left our plant upon expiration of the deadline or if we have reported readiness for dispatch. If acceptance is required, the acceptance date shall be definitive, except for cases where refusal of acceptance is justified; if a test run is stipulated in the contract, the execution of such or, alternatively, our reporting of readiness for acceptance shall be definitive. In the event of additional or supplemental orders issued at a later time, the agreed delivery deadline shall be delayed accordingly.

(3) If we cannot fulfil contractual delivery deadlines for reasons that are not within our scope of responsibility (non-availability of service), we will immediately inform the Customer of such and simultaneously notify the Customer of a provisional new delivery deadline. If the service is not available by the new delivery deadline, we shall be entitled to withdraw from the contract either in full or in part; if the Customer has already provided consideration, this shall be reimbursed immediately. Non-availability of the service in this sense specifically means delayed delivery to ourselves by our suppliers if we have concluded a congruent coverage transaction, if neither we nor our supplier are responsible, or if we have no procurement obligation in the individual case.

(4) Compensation for delay can only be demanded if the Customer has granted us an appropriate grace period of at least two calendar weeks in writing after occurrence of the delay and the delay continues after expiration of the grace period. If the delay is the consequence of gross negligence on our part, compensation for delay may be demanded immediately after occurrence of such.

(5) The Customer’s rights pursuant to Section 8 of these GCC and our statutory rights, particularly in the event of an exclusion of our obligation to perform (e.g. due to impossibility or unreasonableness of delivery and/or supplementary performance) shall remain unaffected.

Section 4 Delivery, transfer of risk, acceptance, default of acceptance

(1) Delivery shall be ex works. Our plant is also the place of performance. Upon the Customer’s request and at the Customer’s expense, the Goods may also be shipped to a different destination (sale involving the carriage of goods). Unless otherwise agreed, we shall be entitled to determine the type of dispatch (specifically transport company, dispatch route, packaging).

(2) The risk of accidental loss and accidental deterioration of the Goods shall be transferred to the Customer upon transfer of the Goods at the latest. For sales involving the carriage of goods, however, the risk of accidental loss and accidental deterioration of the Goods as well as the risk of delay shall be transferred upon delivery of the Goods to the forwarder, the carrier, or the person or institution otherwise responsible for execution of the dispatch, even in case of partial deliveries or if we have accepted other services, e.g. shipping costs or delivery and installation. Partial deliveries shall be permissible, provided that this is reasonable for the Customer. If acceptance has been agreed upon, then this shall govern the transfer of risk. In this case, acceptance must be performed immediately on the acceptance date or, alternatively, after our notification of readiness for acceptance. In all other respects, the statutory provisions applicable to contracts for work and services shall also apply accordingly to agreed acceptance. In the case of assembly or repairs, our liability for discernible defects shall become void upon acceptance, provided that the Customer did not reserve the right to assert a specific defect. Transfer or acceptance shall be deemed to have taken place in the event of default of acceptance.

(3) In the event that the Customer defaults on acceptance, fails to cooperate, or if our delivery is delayed for reasons that are within the Customer’s scope of responsibility, we shall be entitled to demand compensation for the resulting damages, including additional expenses (e.g. storage costs). For this purpose, we shall specify an amount of compensation (lump sum) at our discretion, which can be verified by the relevant court. We shall be entitled to commission third parties for storage, including transport to the storage location. This shall not affect our right to provide evidence of greater damages or our statutory rights (specifically reimbursement of additional expenses, reasonable compensation, cancellation); however, the lump sum must be credited toward further monetary claims. The Customer shall be entitled to prove that we did not incur damages or incurred significantly lower damages than the stated lump sum.

(4) With regard to assembly, the Customer, upon request of our installers, must use work reports to acknowledge the services performed at least weekly, but no later than after completion of assembly work. If the Customer refuses to acknowledge assembly work on work reports, we shall be entitled to suspend further work due to the Customer until they acknowledge the work performed. Proof of performance and signed performance records by the Customer shall serve as a basis for accounting.

Section 5 Prices and payment terms

(1) Unless otherwise agreed in each individual case, our current prices at the time of conclusion of the contract, plus statutory value-added tax, shall apply. We shall send these to the Customer immediately and free of charge upon request in text form if such are not enclosed.

(a) Unless otherwise agreed, the prices for deliveries shall be ex works, including loading at our plant and excluding packaging and unloading. Unless otherwise agreed, payment shall be due without deductions to our account as follows:
(aa) 1/3 down payment after receipt of the order confirmation,
(bb) 1/3 as soon as the Customer has been notified that the main components are ready for dispatch,
(cc) the remainder within one month after transfer of risk.

(b) Prices for assembly work:
(aa) Unless a flat rate has been expressly agreed, assembly work shall generally be invoiced based on time and other expenses at the rates for assembly work applicable upon placement of the order. The actual quantity of materials necessary for assembly shall be invoiced at the prices applicable at the time of execution of the assembly work.
(bb) We shall be entitled to request weekly or monthly instalment payments commensurate with the progress of assembly. If, at the Customer’s request, assembly is interrupted for a considerable period of time, we shall be entitled to invoice the assembly services provided until such time based on our applicable rates for assembly services; however, if a flat rate has been agreed, the invoice amount shall not exceed the order value.

(c) Prices for repair work:
(aa) Wherever possible, the Customer shall be informed of the expected repair price upon conclusion of the contract; otherwise, the Customer shall be entitled to set cost limits. If the repair cannot be executed at these costs or if we find that additional work is required during the repair process, the Customer’s approval must be obtained if stated costs are exceeded by more than 15%.
(bb) If a cost estimate with binding prices is desired prior to execution of the repair, the Customer must expressly request this. Unless otherwise agreed, such cost estimate shall only be binding if it is issued in writing and must be compensated. The services provided for submission of the cost estimate shall not be invoiced to the Customer if these can be utilised during the execution of the repair.
(cc) We shall be entitled to request reasonable prepayment upon conclusion of the contract. Prices for parts, materials and special services used as well as labour, travel and transport costs must be listed separately in the invoice for repairs. If repairs are executed based on a binding cost estimate, reference to the cost estimate shall suffice; only deviations to the scope of services must be listed separately. Invoice corrections and Customer complaints must be submitted in writing no later than four weeks after receipt of the invoice.

(2) In the event of a sale involving the carriage of goods (Section 4, Paragraph 1), the Customer shall bear transport costs ex works as well as the costs of transport insurance if required by the Customer. If we do not invoice the actual incurred transport costs in each individual case, flat-rate transport costs (excluding transport insurance) according to the prices applicable at the time of conclusion of the contract shall be deemed to be agreed upon. The Customer shall bear the cost of any potential customs duties, fees, taxes and other public charges. We will not take back transportation packaging or any other packaging pursuant to the German Packaging Ordinance; these shall become the Customer’s property; pallets are excluded.

(3) Unless the Contractual Parties have agreed otherwise or unless otherwise stipulated in Section 5, Paragraph 1 or 2 of this contract, the price for the Goods shall be due and payable within 14 days of the invoice date and delivery or acceptance of the Goods. However, we shall be entitled to demand a down payment amounting to one third of the price of the Goods, including within the scope of assembly and repair work. The down payment shall be due and payable within 14 days of the invoice date.

(4) The Customer defaults upon expiration of the payment deadline. The agreed price of the Goods shall bear interest during the default period at the respective applicable statutory default interest rate. We reserve the right to assert further damages as a result of the default. We shall be entitled to commercial maturity interest vis-a-vis commercial entities (Section 353 of the German Commercial Code, HGB).

(5) The Customer shall only be entitled to offset rights and retention rights if their claim is legally ascertained or undisputed. The Customer’s reciprocal rights, particularly pursuant to Section 7, Paragraph 7, Clause 2 of these GCC, shall remain unaffected in the event of defects of the Goods.

(6) If we become aware of circumstances giving rise to a significant deterioration in or significant risk to the Customer’s assets and thus giving rise to justified doubts regarding the fulfilment of the Customer’s contractual obligations, e.g. petition to open insolvency proceedings or unauthorised payment default of more than four weeks, we shall be entitled to refuse to perform the service incumbent upon us until the Customer provides consideration or furnishes security for such services and – following a grace period if necessary – we shall be entitled to withdraw from the contract. For contracts for the manufacture of specific items (custom manufacturing), we are entitled to declare our withdrawal immediately; statutory regulations regarding the dispensability of a grace period shall remain unaffected. If the Customer does not provide consideration or security within a reasonable grace period granted to them, we shall be entitled to withdraw from the contract or cancel it. This shall apply even if our service has been performed either in full or in part.

Section 6 Retention of title

(1) We shall reserve ownership of sold Goods until full payment of all of our current and future receivables arising from the agreement and a continuous business relationship (secured receivables).

(2) The Goods subject to retention of title may not be pledged to third parties nor assigned for security purposes prior to full payment of the secured receivables. In the event and to the extent that third parties access the Goods belonging to us, the Customer must immediately inform us of such in writing so that we can assert our property rights. If third parties are unable to reimburse us for judicial or extrajudicial costs incurred in this regard, the Customer shall be liable for such.

(3) The Customer must handle Goods subject to retention of title with care and must specifically observe our instructions with regard to storage. The Customer must, at their own expense, obtain sufficient insurance coverage against theft, breakage, fire, water and other damage at replacement value for Goods subject to retention of title. If the Customer has not verifiably obtained insurance coverage, we shall be entitled to insure the Goods at our expense. The Customer must execute any maintenance and inspection work that may be required in a timely manner and at their own expense.

(4) If the Customer acts in violation of the contract, particularly in the event of non-payment of the price of the Goods due, we shall be entitled to withdraw from the contract pursuant to statutory provisions and to demand return of the Goods based on retention of title and right to withdraw. The Customer shall be responsible for transport costs incurred in connection with a return of the Goods. In the event that the Customer does not pay the price of the Goods due, we shall be entitled to assert these rights only if we have first granted the Customer an appropriate grace period for payment, which has expired without success, or if such a grace period is dispensable pursuant to statutory provisions.

(5) The Customer shall be entitled to resell and/or process the Goods subject to retention of title within their proper course of business. The following rules shall apply in this case.

(a) Retention of title covers the full value of products created by processing, amalgamation or combination with our Goods, whereby we are deemed to be the producer. If third parties’ retention of title continues to be valid within the scope of processing, amalgamation or combination with third-party goods, we shall acquire co-ownership in proportion to the invoice values of the processed, amalgamated or combined goods. In all other respects, the same shall apply to the created product as for Goods subject to retention of title.

(b) The Customer shall herewith assign to us as security the total amount of any receivables against third parties arising from the resale of the Goods or the product, or receivables in the amount of our possible co-ownership share pursuant to the above paragraph. We shall accept such assignment. The Customer’s obligations stated in Paragraph 2 shall also apply in consideration of assigned claims.

(c) The Customer shall also remain entitled to collect receivables. We shall undertake to not collect receivables as long as the Customer fulfils their payment obligations vis-à-vis us, does not default on payment, does not file for insolvency proceedings and there is no other defect in their performance. However, if this is the case, we shall be entitled to request that the Customer informs us of the assigned receivables and of the corresponding debtors, provides all information required for collection, hands over the associated documents and informs the debtors (third parties) of the assignment.

(d) If the realisable value of securities exceeds our receivables by more than 10%, we will release securities upon the Customer’s request.

Section 7 Customer’s warranty claims

(1) Unless otherwise agreed below, statutory provisions apply to the Customer’s rights in terms of defects of title and quality (including incorrect delivery and short delivery as well as improper assembly or defective assembly instructions). In any case, the special statutory provisions upon final delivery of the Goods to a consumer shall remain unaffected (suppliers’ recourse pursuant to Sections 478, 479 BGB).

(2) Our warranty for defects is chiefly based on the agreement regarding the condition of the Goods. An agreement regarding the condition of the Goods shall be deemed to be constituted by the product descriptions (including those from the manufacturer) which are designated as such and have been given to the Customer prior to the order or have been included in the contract in the same manner as these GCC. We shall not be liable if the defect is insignificant in regard to the Customer’s interests or is based on a circumstance that is within the Customer’s scope of responsibility. This applies specifically in regard to parts provided by the Customer.

(3) If the condition of the Goods has not been agreed, the possible existence of a defect shall be based on statutory regulations (Section 434, Paragraph 1, Clause 2 and 3 BGB). We shall not be liable for public statements by the manufacturer or other third parties (e.g. advertisement claims).

(4) The Customer’s warranty claims shall be conditional upon the Customer’s fulfilment of their statutory obligation to inspect and give notice of defects (Section 377 and 381 HGB). The Customer must perform a detailed inspection of the Goods immediately after delivery. The obligation to inspect also includes the random sample inspection of delivered Goods to ensure that they are suitable for the intended use, e.g. the performance of stress tests, provided that this is objectively and economically reasonable for the Customer. If a defect is found during the inspection or at a later time, we must be informed of such immediately in writing. The notification is deemed to be immediate if it is made within two weeks of delivery, whereby the timely sending of the notification shall suffice. Regardless of this obligation to inspect and give notice of defects, the Customer is obligated to report obvious defects (including incorrect delivery and short delivery) in writing within two weeks of delivery, whereby the timely sending of the notification shall also suffice for compliance. If the Customer fails to perform a proper inspection and/or notification of defects, we shall not be liable for any defects not reported. If we fraudulently concealed the defect, we cannot assert this regulation.

(5) At our express request, a defect report must be created upon acceptance of the service, which shall include all defects in regard to which the Customer reserves the right to assertion. The defect report must be signed by authorised signatories of both Contractual Parties.

(6) If the Goods have defects, the Customer shall be entitled to request supplementary performance. They may choose between removal of the defect (rework) or delivery of a faultless item (replacement delivery). If the Customer does not declare a choice between these two options, we shall be entitled to grant appropriate notice to do so. If the Customer does not make a choice within such grace period, the right to choose shall be transferred to us upon expiration of the grace period.

(7) We shall be entitled to make the owed supplementary performance conditional upon the Customer’s payment of the price of the Goods due. The Customer shall, however, be entitled to retain a portion of the price of the Goods that is adequate in regard to the defect.

(8) If the complaint is found to be justified, we shall bear the direct costs for the removal of the defect, rework or replacement delivery to include dispatch; for repairs and assembly, this shall only apply if we are not unreasonably burdened by such. The Customer must grant us sufficient time and opportunity to perform the owed supplementary performance, specifically to hand over the defective Goods for inspection purposes; otherwise, we shall be exempt from any liability for consequences. In the event of replacement delivery, the Customer must return the defective Goods to us pursuant to statutory provisions. We shall also bear the costs of removal and installation as well as the costs of potentially providing necessary installers and workers, including travel costs, provided that we are not unreasonably burdened by such. Replaced parts shall become our property.

(9) In urgent cases, e.g. if operational safety is at risk or to avoid unreasonable damages, the Customer shall be entitled to remove the defect themselves and to demand from us reimbursement of the expenses objectively required for this. We must be informed of such self-performance immediately and in advance if possible. The right to self-performance shall be void if we would be entitled to refuse corresponding supplementary performance pursuant to statutory provisions.

(10) If supplemental performance was unsuccessful or a grace period for supplemental performance to be granted by the Customer has expired without success or is dispensable pursuant to statutory provisions, the Customer shall be entitled to withdraw from the contract or to reduce the price of the Goods. The right to withdraw shall become void in the event of insignificant defects.

(11) We shall not be liable specifically in cases of unsuitable or inappropriate use, faulty assembly or commissioning by the Customer or third parties, as well as for natural wear, faulty or negligent handling, improper maintenance, improper operating resources, faulty construction work, unsuitable building ground and chemical, electrochemical or electrical influences, unless these are within our scope of responsibility. We shall not be liable for consequences arising from improper rework performed by the Customer or a third party. The same shall apply to any modifications to the Goods performed without our prior approval.

(12) If the utilisation of the Goods results in a violation of industrial property rights or copyrights, we shall, at our expense, grant the Customer the right to continued use or will modify the Goods – insofar as is reasonable for the Customer – in such a manner that the industrial property right is no longer violated. If this is not possible at an economically reasonable price or within a reasonable time, the Customer shall be entitled to withdraw from the contract. Subject to the stated conditions, we shall also be entitled to withdraw from the contract. Furthermore, we shall indemnify the Customer from undisputed or legally ascertained claims of the affected owners of the industrial property rights. Our obligations pursuant to this paragraph shall only apply if:

a) the Customer informs us immediately of claimed violations of industrial property rights or copyrights,
b) the Customer supports us to a reasonable extent in the defence against the claimed violations or gives us the opportunity to execute modifications,
c) we can reserve the right to all defensive measures, including extrajudicial settlements,
d) the defect of title is not based on instructions given by the Customer, and
e) the violation was not caused by the Customer’s unauthorised modification of the Goods or the Customer did not use the Goods contrary to contract.

(13) If, in the case of assembly, an assembly component delivered by us is damaged due to a fault on our part or, in the case of repair, parts of the object ceded to us for repair (hereinafter referred to as “object of repair“) are damaged due to a fault on our part, we shall be obligated to repair, replace or re-deliver the object of repair or the assembly component at our choice and at our expense.

(14) In the case of repairs and in the event of slight negligence and gross negligence of non-executive employees, the costs to be incurred for such shall be limited to the contractual price for repairs.

(15) The Customer’s claims for damages or reimbursement of expenses incurred in vain shall only be valid pursuant to Section 8 and are otherwise excluded.

Section 8 Liability

(1) Unless otherwise set forth in these GCC, including the following provisions, we shall be liable in case of infringement of contractual or non-contractual obligations pursuant to the pertinent statutory provisions.

(2) The Customer shall be solely responsible for plans, documents, drawings, samples and similar items, insofar as such are to be provided by the Customer. The Customer shall specifically be liable for ensuring that the documents submitted by them or the execution of such does not infringe on third-party property rights. Vis-à-vis the Customer, we are specifically under no obligation to review whether submission of a proposal based on drawings submitted by the Customer infringes third-party property rights in the event of execution. In the event that a liability arises, the Customer must indemnify us from possible claims.

(3) For production pursuant to Customer drawings and regardless of other limitations of warranty or liability, we shall only be liable for execution according to drawings.

(4) Regardless of the legal cause, we shall be liable for compensation for damages in the event of intent or gross negligence. In the event of ordinary negligence we shall only be liable for:

a) damages arising from injury to life, body or health,
b) damages arising from the violation of a significant contractual obligation (an obligation the fulfilment of which is essential for the proper execution of this contract and compliance with which the contractual partner commonly trusts and may trust in); in this case, however, our liability shall be limited to the foreseeable, typically occurring damage.

(5) The liability limitations arising from Paragraph 4 shall not apply if we have fraudulently concealed a defect or guaranteed the condition of the Goods. The same applies to the Customer’s rights pursuant to the Product Liability Act.

(6) The Customer shall be entitled to withdraw from or cancel the contract due to a violation of an obligation that is not attributable to a defect only if the violation of an obligation is within our scope of responsibility. The Customer’s free right of termination (specifically in regard to Section 651, 649 BGB) is excluded. In all other respects, the statutory conditions and legal consequences shall apply.

7) In the event that damages arise or if the Goods have defects due to the Customer’s faulty provisions, the Customer shall indemnify us from possible claims unless we are at fault pursuant to Section 8, Paragraph 4 and 5.

Section 9 Utilisation of software

(1) If the scope of delivery includes software, the Customer shall be granted a non-exclusive right to utilise the software as well as its documentation. It is supplied for use with the Goods intended for this purpose. The utilisation of the software on more than one system is prohibited.

(2) The Customer may reproduce, revise or translate the software or convert it from object code to source code only to the legally permissible extent (Section 69 a et seq. German Copyright Law, UrhG). The Customer may not remove manufacturer’s information, specifically copyright notices, or modify this information without our express prior approval.

(3) All other rights to the software and documentation, including copies, shall remain with us or with the software supplier. Granting sub-licences is not permitted.

Section 10 Cooperation, technical assistance and Customer’s compensation for assembly and repairs outside our plant

(1) The Customer must support our staff in the execution of assembly or repairs at their own expense. The Customer must take special measures required for the protection of people and objects at the assembly or repair location. The Customer must also inform our assembly or repair specialist of existing special safety requirements if these are of significance to our staff. The Customer shall inform us if our staff violate such safety requirements. In the event of severe violations and in consultation with our assembly or repair specialist, the Customer shall be entitled to refuse the offender access to the assembly or repair location.

(2) The Customer must provide technical assistance at their own expense, specifically:

a) To provide the required number of necessary, suitable labourers (masons, carpenters, metalworkers, other specialists, unskilled workers) for the assembly or repair for the required time; the workers must follow the instructions of our assembly or repair specialist. We shall not be liable for workers. If defects or damages are caused by workers due to the instructions of our assembly or repair specialist, Section 7 and 8 shall apply.
b) To execute all excavation, construction, foundation and scaffolding work, including provision of required material.
c) To provide the required equipment and heavy tools (e.g. lifts, compressors) as well as the required articles and materials (e.g. scaffolding boards, wedges, supports, cement, cleaners and sealants, lubricants, fuel, drive ropes and belts).
d) To provide heating, illumination, operating power, water, including the required connections.
e) To provide the necessary dry, lockable rooms to store our staff’s tools.
f) To provide transportation of the assembly or repair parts to the assembly or repair location, to protect the assembly or repair location and materials from harmful influences of any kind, to clean the assembly or repair location.
g) To provide suitable, theft-proof social areas and workspaces (including heating, illumination, washing and sanitary facilities) and first aid for our staff.
h) To provide materials and to implement all other activities required to adjust the object to be assembled or installed and to perform a contractually agreed test run.

(3) The Customer’s technical assistance must guarantee that the assembly or repair can be started immediately after arrival of our staff and can be carried out without delay through to acceptance by the Customer. If special plans or instructions are required, the Customer shall provide such to our staff in a timely manner.

(4) In the event that the Customer does not fulfil their obligations, we shall – after granting a notice period – be entitled but not obligated to execute the activities incumbent upon the Customer in their place and at their expense. In all other respects, our statutory rights and claims shall remain unaffected.

(5) If, without any fault on our part, equipment or tools provided by us are damaged at the assembly location or if the equipment or tools provided by us for repair work are damaged at the repair location or are lost at the assembly or repair location, the Customer must compensate these damages if they are responsible for such. Damages based on normal wear shall be disregarded.

Section 11 Special regulations for repairs (non-executable repair, repair at our plant, retention of title, industrial property rights)

(1) The services provided for submission of a cost estimate as well as further incurred expenses to be verified (troubleshooting time equal to work time) shall be invoiced to the Customer if repair cannot be executed for reasons that are not within our scope of responsibility, specifically because:

a) the claimed error did not occur during the inspection,
b) replacement parts cannot be obtained,
c) the Customer culpably missed the agreed deadline,
d) the contract was cancelled during execution.

The object of repair must be returned to the original condition only upon the Customer’s express request and against reimbursement of costs, unless the performed work was not required.

(2) Unless otherwise agreed upon in writing and upon the Customer’s request, haulage of the object of repair – including possible packaging and loading – shall be at the Customer’s expense or otherwise the object of repair shall be delivered to us by the Customer at their expense and then picked up at our location by the Customer after execution of the repair. The Customer shall bear the transport risk. Upon the Customer’s request and at their expense, delivery and potential return delivery shall be insured against insurable transportation damages, e.g. theft, breakage, fire. In general, insurance coverage will not be in place during the repair at our plant. The Customer must maintain the existing insurance coverage for the object of repair, e.g. fire, tap water, storm and machinery breakage insurance. Insurance coverage for these risks can be obtained only upon the Customer’s express request and at the Customer’s expense. In the event of a delay in the Customer’s taking possession of the object, we shall be entitled to charge storage fees for storage at our plant. The object of repair may also be stored elsewhere at our discretion. Cost and risk of storage shall be borne by the Customer.

(3) We retain title to all accessories, spare parts and exchange elements used until receipt of all payments arising from the contract. Further security agreements may be negotiated. For claims arising from the contract, we shall be entitled to lien on the Customer’s object of repair in our possession according to the contract. The lien may also be asserted for claims arising from work performed, spare parts deliveries and other services provided at an earlier time, insofar as such are connected to the object of repair. The lien shall apply to other claims arising from the business relationship only if these are legally ascertained or undisputed.

(4) If the object of repair was not delivered by us, the Customer must inform us of existing industrial property rights in regard to the object of repair; if we are not at fault, the Customer shall indemnify us from possible third-party claims arising from industrial property rights.

Section 12 Limitation

(1) Deviating from Section 438, Paragraph 1, No. 3 BGB or Section 634a, Paragraph 1, No. 3 BGB, the general limitation period for claims arising from material defects and defects of title is one year as of delivery. If acceptance has been agreed upon, the limitation period shall commence upon acceptance.

(2) If the Goods, however, are a building or an object which, according to its common manner of use, has been used for a building and has caused its defectiveness (construction material), the limitation period pursuant to statutory provisions is 5 years as of delivery (Section 438, Paragraph 1, No. 2 BGB or Section 634a, Paragraph 1, No. 2 BGB). The special statutory provisions for third-party surrender claims (Section 438, Paragraph 1, No. 1 BGB), in the event of fraud (Section 438, Paragraph 3 BGB or Section 634a, Paragraph 3 BGB) and claims for supplier recourse (Section 479 BGB) shall also remain unaffected.

(3) The aforementioned limitation periods of the German law on the sale of goods or the German law on contracts for work and services also apply to the Customer’s contractual and non-contractual claims for compensation based on a defect of the Goods, unless application of the regular statutory limitation period (Section 195, 199 BGB) would in the individual case result in a shorter limitation period. The limitation periods under the German Product Liability Act shall remain unaffected in any case. Otherwise, only the statutory limitation periods shall apply to the Customer’s claims for compensation pursuant to Section 8.

Section 13 Choice of law and place of jurisdiction

(1) In terms of a choice of law pursuant to Article 3, Paragraph 1 of the Rome I Regulation, the contractual and non-contractual relations between us and the Customer and specifically these GCC are subject to the law of the Federal Republic of Germany excluding the United Nations Convention on Contracts for International Sale of Goods (CISG) of 11 April 1980. Conditions and effects of the retention of title pursuant to Section 6 are subject to the law at the respective location of the Goods if the choice of law in favour of German law is impermissible or invalid.

(2) Our registered office is the exclusive – and international – place of jurisdiction for all disputes arising directly or indirectly from the contractual relation. However, we shall be entitled to file suit at the Customer’s general place of jurisdiction.

Section 14 Severability clause

(1) If individual or multiple provisions of these GCC should be or become invalid or unenforceable, or if these GCC contain one or more gaps, this shall not affect the validity of the remaining provisions.

(2) The Contractual Parties shall mutually agree on a permissible provision that comes closest to the economic intent of the invalid or unenforceable provision.

(3) The provision containing gaps shall be replaced by a provision which the Contractual Parties would have agreed upon in light of their economic intent had they recognised this gap.