Special conditions for development and/or assembling up of plant facilities and products
1.1 The following conditions shall apply for every order for development and/or delivery and/or assembling of machines.
1.2 The special conditions for the development and/or delivery and/or assembling of machines are part of the General Conditions and Terms of the supplier which shall be valid fully as well if not otherwise expressively stated in the special conditions. In case of differences between the General Terms and Conditions and the Special Conditions the meaning of the Special Conditions shall prevail.
2. Customer’s co-operation obligations
2.1 The customer shall support the supplier’s personnel in assembling of machines at his expense. The customer shall provide on time the necessary personnel to assist the supplier’s personnel with tasks that need to be done outside the assembling process. The customer shall inform the supplier’s personnel about all relevant security issues accruing from the customer’s business which are not limited to the supplier’s machine; the customer shall be responsible for the observation of these security issues.
2.2 The customer shall be responsible for getting the necessary approvals of the relevant authorities on time.
2.3 The customer shall take care that he or his representative can be contacted by the head of the assembling team during the assembling of machines at all times.
2.4 The customer shall at his expense be obliged to technically support the supplier, especially to:
a) carry out all ground, building, foundation and scaffolding works including the necessary building materials.
b) provide all necessary and suitable supporting personnel (such as masons, carpenters, locksmiths, electricians and other skilled and unskilled workers) for such tasks that are not part of the assembling process as such; that shall be done within the time necessary for assembling. The customer’s supporting personnel shall follow the instructions of the supplier’s personnel. However, the supplier shall not be liable for this personnel. In case the supporting personnel causes damage or faults while following the instructions of the supplier’s personnel clause 4 of the special conditions shall apply.
c) provide all necessary machines and heavy tools (such as lifting ramps, compressors) as well as all necessary equipment and materials (such as woods, layers, cement, plaster, sealing materials, lubricants, fuels, etc.).
d) transport the machine’s parts from where they are unloaded to where they need to be assembled; protect the parts and materials from all harmful influences; clean the location where the machine is to be assembled.
e) provide heating, light, electricity (220 V alternating current and 350 V three-phase current), water and the necessary connections.
f) provide suitable, especially dry and safe rooms in immediate proximity to the location where the machine is assembled, for the storage of machines, parts, tools, equipment, materials and such; provide a telephone connection or at least give the opportunity to use a telephone connection.
g) provide suitable rooms for the residence of the suppliers personnel (including heating, washing and sanitary facilities as well as first aid equipment) which are protected against theft.
h) provide material; undertake all actions necessary for the adjustment of the supplied machine and execute the necessary contractual envisaged trials of the machine; ensure through technical support that the assembling up of the machine can be started as soon as the supplier’s personnel arrives and can be executed without delay and interruptions until the assembling is finished or accepted through the customer.
3.1 The customer shall be obliged to accept the assembling of the machine as soon as he has been notified of the finishing of the assembling; this without delay while the suppliers personnel is still on site and able to co-operate. In case the customer does not perform the acceptance of the assembling of the machine although he has been called upon acceptance within a certain time he shall be deemed to have accepted the assembling
as faultless if he has been especially informed about this consequence beforehand.
3.2 On demand the customer shall accept:
a) major parts of the machine as assembled.
b) other parts of the setting up process if they are subject to examination and trial in the following process.
3.3 Acceptance can only be denied for substantial faults until they are rectified, unsubstantial faults give no right to deny acceptance.
3.4 An acceptance protocol shall be made and signed by both parties. This protocol shall contain all potential faults. Detectable faults not contained in this protocol cannot be asserted afterwards.
4. Liability for faults of the development and assembling process
4.1 The liability for faults of the development and assembly process is limited for 12 months in case of multiple shift work to 6 months after acceptance.
4.2 The supplier at his choice shall be entitled to repair faults or exchange (parts of) the machine in case faults of the assembling occur within 12 months – in case of multiple shift work within 6 months- after acceptance and have been notified to the supplier in time and writing,. Exchanged parts shall be the sole property of the supplier. If the supplier is not ready or willing to rectify the faults, especially if the rectification of the faults is not undertaken within a reasonable time-limit through fault of the supplier or in case two efforts to rectify the fault have failed, the customer shall be entitled –without regard to possible claims for damages under section 4.4– to the statutory rights. In case the customer has a choice of different warranty claims he shall be obliged to take his choice within a reasonable time-limit if the supplier demands.
4.3 The supplier shall only be liable for faults not contained in the acceptance protocol if the faults can only be detected after acceptance and if these faults have been notified to the supplier within 14 days after detection in writing.
4.4 The supplier shall not be liable for:
a) unsubstantial faults which do not impair the value or functionality of the assembled machine.
b) faults caused through defective support of the customer.
4.5 For further claims, especially claims for damages, the liability of the supplier shall be limited in case of simple negligence to payment of his third-party insurance. The same shall apply for the personal liability of all personnel, workers, representatives etc. of the supplier. On demand the supplier shall inform the customer about the coverage of his third party insurance. This limitation to the liability shall apply for damages occurring outside the assembled machine as well, unless the delivered machine does not have the qualities that have expressively been stated by the supplier and this statement of qualities was intended to safeguard the customer against damages occurring outside the delivered machine or in case the fault has been concealed with fraudulent intent. Other claims of the customer for damages and/or compensation are excluded. This shall not apply in case of mandatory liability under the German Product Liability Act (“Produkthaftungsgesetz”), in case of intent, gross negligence, injury of life, body or health or in case of a breach of a condition which goes to the root of the contract (“wesentliche Vertragspflicht”). However,
claims for damages arising from a breach of a condition that goes to the root of the contract shall be limited to the foreseeable damage which is
intrinsic to the contract, unless again caused by intent or gross negligence or based on liability for injury of life, body or health.
5.1 The supplier shall insure the assembling of the machine from the time of delivery until the assembling of the machine is finished. Insurance ends
with the finishing of the assembling and the written notification thereof or with acceptance of the machine. The customer confirms through
signing of the acceptance protocol or through sending back of the notification that the assembling of the machine has been finished, that he has
taken over the obligation to look after insurance for the machine.
5.2 The supplier shall be entitled to invoice insurance fees to the customer in case the beginning of the assembling or the duration of the assembling
have been delayed through customer’s fault.
6. Supplier’s personnel
6.1 The supplier’s personnel shall be entitled to receive objections of the customer. However, the customer shall be obliged to notify the supplier in writing as well or he loses his rights gained through the objection. The mechanics of the supplier shall not be entitled to give any legally binding statements for the supplier.
6.2 The mechanics of the supplier shall not be entitled to undertake any tasks the supplier is not contractually obliged to. The supplier shall not be liable for any tasks nevertheless undertaken without expressive contractual agreement.
6.3 The mechanics of the supplier shall not be entitled to accept any oral orders. Orders shall be undertaken in writing and have to be confirmed through the supplier.
7. Assembling with fixed-prices
In case of an agreement about a fixed-price for assembling and/or beginning of operation the following conditions shall apply:
7.1 The services of the customer have to be delivered in a reasonable time and manner.
7.2 All conditions for a regular and uninterrupted assembling process and beginning of operation have to be ensured. If this is not the case the supplier shall be entitled to invoice for the extra costs occurring in addition to the fixed price.
8. Customer’s liability
8.1 In case supplier’s plant facilities, equipment, products or tools are damaged or get lost on the assembling site without fault of the supplier, the customer shall be obliged to compensate the supplier unless the damages are due to the regular use of the equipment or tools.
9. Applicable law and language
9.1 The mutual relationships shall be exclusively governed by the law of the Federal Republic of Germany. In case of differences between the meaning of the German version and the English version of the special conditions set out the German text shall prevail.
Kierspe, September 2013