General Terms of Business of Gämmerler GmbH for the execution of installation services
These installation conditions apply to all installations by GÄMMERLER GmbH (hereinafter referred to as "GÄMMERLER“), provided that agreements to the contrary have not been made in writing in each individual case. The installation conditions apply exclusively; any countermanding conditions or conditions from the customer that vary from GÄMMERLER's installation conditions are not recognised by GÄMMERLER, unless GÄMMERLER has already agreed to their validity in writing. These installation conditions shall also apply even if GÄMMERLER carries out the installation unconditionally in the knowledge of countermanding conditions or conditions that vary from these installation conditions from the customer. These installation conditions apply also to all future installation orders from the customer.
II. Installation price
- The installation shall be charged as indicated on the attached document, on the basis of time involved, unless a lump sum price has been specifically agreed in writing in advance.
- Invoicing the reimbursement to be paid (hereinafter referred to as the "installation costs" is carried out after completion of the installation, unless an agreement has been made to the contrary. If it becomes apparent to GÄMMERLER after agreeing the contract that there is some reason to doubt the credit-worthiness of the customer, GÄMMERLER may demand security in the form of a bank guarantee or may terminate the installation contract.
- In the event of any delay in payment, GÄMMERLER shall be entitled to charge default interest in accordance with the legal stipulations. The customer shall be entitled to charge or implement a right to retention only if GÄMMERLER has recognised the demands in writing or they have been determined legally.
- All the amounts quoted or calculated in the attached document represent net prices not including the legally applicable value added tax.
- If it becomes necessary to replace the installation personnel for a reason outside of the responsibility of GÄMMERLER, then the (extra) costs incurred as a result shall be covered by the customer.
- Any taxes and similar outgoings incurred at an overseas site as a result of the installation activities of GÄMMERLER, particularly for installation wages or subsistence allowances, must be borne by the customer, even in the case of lump sum installations at fixed or maximum prices.
- If the installation action is extended due to customer training, the relevant instruction time must be paid for separately, even in the case of lump sum installations or installations valued at fixed or maximum prices. The relevant working hours will be charged along with the applicable supplements according to the document attached, depending on the time involved.
- If the start of installation or the progress of the installation is delayed as a result of non-fulfilment of the obligations applying to the customer, which include preparation for the installation, the waiting time of the installation personnel will be charged to the customer as working time.
- The start point for calculation of the installation and travel costs, the surcharges and subsistence allowance shall be the GÄMMERLER plant. The travel time to the installation site (including a max. of 3 hours before departure and up to 3 hours after arrival of the relevant means of transport), waiting time and statutory public holidays in the Federal Republic of Germany and the Free State of Bavaria shall be counted as working time. In the case of public holidays we invoice the lost working time. If it is not possible for installation personnel to stay close to the installation site, the travelling time between the accommodation location and the installation site will be charged as working time. If a means of transport needs to be used, the travel costs between the lodgings location and the installation site will be charged separately as shown in the appendix.
III. Retention of title, tools and consumables
- Tools, etc.:
The installation rates quoted include the provision of commonly used tools (e.g. hand-held drills), unless specifically agreed to the contrary. The provision of heavier lifting equipment and stationary installation devices will be charged for separately.
- Consumables will be charged for according to use.
- Items supplied by GÄMMERLER that form parts of the installation service provision, remain the property of GÄMMERLER until irrevocable, unconditional and complete payment is made. The retention of title applies also to needs that may arise on the part of GÄMMERLER due to its business relationship with the customer. As long as the retention of title exists, the customer shall not be entitled to recharge the delivered item with a security interest (e.g. securing property, lien, mortgage, ground rent etc.) or to otherwise alienate it. For the eventuality that, at the location where the delivered item is to be located according to the contract, the security agent "retention of title" is unknown, the agreed security interest that comes closest to "retention of title" ("Eigentumsvorbehalt") in the law which applies at this location shall be used, or the security interest which represents the typical security interest in this system of law (e.g. "lien" or "security interest, attached and perfected"). The customer is obligated to take cooperative actions, and in particular to issue the required declarations according to local legal stipulations for the agreement and grounding of such a security interest.
- If the retention of title expires, in particular due to resale, combination, alteration, etc., then the new item appears instead of the retention of title or the claim against a third party by the customer arising from it. The customer retains full rights to enforce the claim to which the extended retention of title by GÄMMERLER refers, as long as it is not in payment default with respect to GÄMMERLER. In the case of alteration, modification, combination and mixing up goods subject to retention of title together with other goods by the customer, GÄMMERLER is entitled to ownership of the new item in the ratio of the invoice value of the goods subject to retention of title in relation to the invoice value of the other item created by the alteration, modification, combination or mixing.
- To secure the claims of GÄMMERLER against the customer, the customer shall assign to GÄMMERLER all claims and entitlements that the customer has acquired by combining the goods delivered with premises against a third party. GÄMMERLER immediately accepts this assignment.
- If the value of GÄMMERLER exceeds the requirements of GÄMMERLER with respect to the customer, as a result of the title retention and the extended retention of title securities, by more than 20 %, then GÄMMERLER must release securities to the level of over-security, when requested so to do by the customer. The selection of the securities to be released is to be by GÄMMERLER.
- If the customer is in default with payments, GÄMMERLER is irrevocably entitled to enter the site of installation, the business premises and the offices of the customer to dismantle the contracted items delivered and to arrange for their removal.
- In the event of action by the customer infringing the contract, especially in the case of improper treatment of the delivered goods, or in the event of payment default by the customer, GÄMMERLER is entitled, after giving prior notice, to demand return of the goods delivered. Such a demand for return of the goods does not represent a termination the contract on condition that GÄMMERLER has not expressly declared its intention to execute its of the right to terminate. GÄMMERLER is entitled, upon the return of the delivered goods, to exploit the value of the goods; the yield of that exploitation, less reasonable exploitation costs, being calculated into the obligations of the customer. Until all claims by GÄMMERLER are satisfied in full, the customer must insure at its own cost the items delivered against any danger of destruction or deterioration.
- In the event of any intervention of third parties affecting the rights of GÄMMERLER, the customer must advise GÄMMERLER of this without delay and to provide all necessary information to GÄMMERLER.
IV. Customer obligations
- The customer must provide appropriate secure rest and working rooms at the location of installation for the installation personnel. It must be equipped with heating, sanitary installations and first aid equipment. In addition, the customer must provide a dry lockable store room of suitable size in the immediate vicinity of the workplace, for tools and installation equipment.
- If the equipment or tools provided by GÄMMERLER get damaged during their presence on the site of installation as a result of actions for which GÄMMERLER is not responsible, or if they are lost by no fault of GÄMMERLER, the customer is responsible for rectification of these damages. Damage that can be traced back to normal wear and tear are not included.
- The customer must inform the GÄMMERLER installation manager of existing safety and hygiene regulations where they are relevant to the installation personnel. He will inform the installation manager without delay in the event of any infringement of such safety regulations.
- The customer is obligated to provide the following technical assistance at its own cost and risk:
a) Provision of appropriate personnel (hereinafter referred to as "customer personnel") in the numbers and during the period required. The customer personnel provided must follow the instructions of the GÄMMERLER installation manager. The customer personnel must be prepared to work overtime if required. Extra work carried out by the GÄMMERLER installation personnel on account of the absence of the customer personnel will be paid for by the customer. The insurance of the customer personnel by professional associations, invalidity and health insurance companies is the responsibility of the customer.
b) Execution of scaffolding work, including the procurement of the necessary raw materials.
c) Provision of the required equipment and heavy tools (e.g. lifting tackle, lifting trucks, fork-lift trucks).
d) Provision of heating, lighting, operational power, compressed air, water, including the necessary connections and the execution of all additional actions that may be necessary for the installation and for execution of a trial as laid down in the contract.
e) Transportation of the parts to be installed to the site of installation. Protection of the site of installation and materials from damaging effects of all kinds, in particular protection from wind and excessively low or high temperatures.
f) Provision of the materials and execution of all additional actions that are required for the adjustment of the items to be installed and for the execution of a trial as laid down in the contract.
a) Provision of the workshop of the customer for use free of charge.
b) Providing telephone and telefax equipment and internet access free of charge where necessary for the smooth progression of the installation.
c) Cleaning the site of installation.
- The customer must nominate a contact person for GÄMMERLER responsible for the installation.
- Where installation personnel arrive by public transport, the customer must provide the GÄMMERLER personnel with a means of transport which ensures them adequate mobility.
- Tools and ancillary material provided by GÄMMERLER for supporting the installation shall remain the property of GÄMMERLER. The customer will pay any import and export taxes that may be required.
- If any repair or maintenance work needs to be carried out, the customer must hand over the installation in a clean condition; personnel must be provided; the test run must be facilitated.
V. Installation time
- With reference to the installation time, the installation proposal submitted by GÄMMERLER is applicable, unless express agreements to the contrary have been made. The installation time shall be considered to have been respected if, on expiry of the installation time, the installation is available for acceptance by the customer. Where a test run has been contractually agreed, the installation must be available for such a test.
- The installation time shall be extended appropriately in the event of actions relating to industrial action, in particular to strikes and lock-outs, as well as if any unexpected hindrances outside the sphere of influence of GÄMMERLER should occur on condition that such hindrances can be proven to have a considerable influence on the completion of the installation services. Neither shall GÄMMERLER be responsible for the above-listed conditions if they should arise during an existing delay. The customer must inform GÄMMERLER immediately of the beginning and end of such hindrances.
- A precondition of compliance with the installation time is the fulfilment by the customer of its contractual obligations, as well as its provision of required the plans, documents, permits, approvals, concessions and the receipt of the agreed down payments.
- If a fixed deadline has been agreed for completion of the installation, GÄMMERLER is authorised to expend whatever overtime that may be required to comply with the deadline.
- If the customer suffers damages due to any delay in the installation for which GÄMMERLER is culpable, it is entitled, excluding any further claims, to demand compensation for the delay amounting to 0.5 % per each full week of delay, up to a maximum of 5 % of the contract price of the unusable portion of the installation service.
- If the installation service should suffer destruction or deterioration due to a cause for which GÄMMERLER is not responsible, then GÄMMERLER is entitled to demand the installation price less the expenditure which has been thus saved. The same applies where it results impossible to install the equipment due to a cause for which GÄMMERLER is not responsible. The customer may demand that the installation be repeated if and insofar as it is reasonable to expect GÄMMERLER to do so, particularly in consideration of their other contractual obligations. For any such repetition, a new amount of remuneration shall be established for GÄMMERLER, based on the contract prices.
- The customer agrees to confirm the times taken and the materials used on the presented working reports and shall point out any installation incorrectnesses immediately after being notified of the completion of installation work, and before the installation personnel from GÄMMERLER leave the site. If the customer refuses this certification, the customer will lose the right to make a claim against the invoice in this respect. The fitter will provide a copy of the work report to the customer.
VII. Commissioning, acceptance
- The customer must provide qualified expert personnel to commissioning, operate, run and maintain the installation.
- Up to the written acceptance has been received, the GÄMMERLER installation personnel shall have exclusive rights to direct the conduct of the installation work. The customer is obligated to immediate commissioning and acceptance as soon as the completion of the installation has been announced.
- Acceptance may only be refused due to significant defects, and only until those defects have been rectified. The acceptance can also be carried out by implication by the customer. If the installation item is fundamentally functional and if the customer uses it as intended, the installation item will count as accepted by the customer after expiry of a month after the first determinable intended use.
- An acceptance report shall be prepared by the customer and GÄMMERLER during the acceptance process for the installation. Any faults must be immediately indicated and designated in the acceptance report. Any alterations or additional parts requested by the customer must also be recorded in the report.
- If the installation proves not to conform to the contract, GÄMMERLER shall rectify the defects indicated within a reasonable period of time at its own cost, unless the defect can be traced back to a circumstance which is not the responsibility of GÄMMERLER. If there should be a defect to be rectified by GÄMMERLER which, in consideration of the interests of the customer, is insignificant, the customer may not refuse acceptance unless GÄMMERLER has specifically recognised its obligation to rectify the defect.
VIII. GAEMMERLER 's liability
GÄMMERLER is liable, to the exclusion of any further claims by the customer after acceptance, for installation defects that are made evident within a period of 12 months after completion of the installation, and which can be proven to be the responsibility of the GÄMMERLER installation personnel, as follows:
- All installation defects must be advised by the customer in writing without delay. They shall then be rectified by GÄMMERLER within a reasonable period of time. Of the direct costs arising from the rectification of defects, GÄMMERLER shall bear the costs of replacement parts including shipping. GÄMMERLER shall also bear the costs of the disassembly and assembly and the costs of any requirement to provide the fitters and labourers, including travel costs, provided that this does not represent a disproportionate burden on GÄMMERLER. Reasonable disassembly and assembly activities must be carried out by the customer itself.
Improper alterations, and alterations carried out without approval by GÄMMERLER, or repair work carried out by the customer or third parties, extinguishes the liability of GÄMMERLER. Only in urgent cases of danger to operational safety and for the prevention of disproportionate damage, the customer is entitled to rectify the defect itself or have it rectified by third parties and demand reimbursement of the costs thus incurred from GÄMMERLER.
- If GÄMMERLER cannot rectify a defect which it is obligated to rectify or if GÄMMERLER fails to its obligations within a reasonable period of time, the customer has a right to reduce the price in accordance with applicable law. The right of the customer to reduce the price exists also in cases of a failed attempt at rectification. Only if the installation is verifiably not in the customer's interest, despite the reduction in price, may the customer terminate the contract.
- For gross negligence by vicarious agents and for simple negligence by GÄMMERLER, any of GÄMMERLER's legal representatives or vicarious agents, GÄMMERLER is only liable insofar as it has failed to fulfil its material contractual obligations. In such cases, GÄMMERLER is only liable for damage typically caused during installation work of this type. The above liability restrictions do not apply for damages arising from injury to life, body or health that has been caused by a negligent failure on the part of GÄMMERLER to fulfil its duties or a deliberate or negligent failure by a legal representative or vicarious agent of GÄMMERLER to do his or her duty, nor for claims based on German product liability law, nor for such claims based on the assumption of a guarantee or arising from fraudulent concealment.
IX. Customer liability
- The customer shall be liable for any material damage or personal injury that may be the responsibility of the customer personnel. The customer shall also be liable for damages caused by the structures, materials or software provided by the customer.
- The customer is liable that all material provided by him in accordance with Subparagraph IV (customer obligations) complies with the applicable accident prevention regulations.
- If the customer enters acceptance default or if it fails to fulfil any other co-operative obligations, then the risk of accidental demise or accidental deterioration of the machine or plant installed by GÄMMERLER passes to the customer at latest at the moment upon which it enters acceptance default
- Damages and additional costs arising from failure to fulfil the co-operative obligations of the customer in relation to GÄMMERLER will be proven and invoiced to the customer.
X. Right of termination by the customer, right of termination by GÄMMERLER
- The customer may terminate the contract if it proves definitively impossible for GÄMMERLER to provide the entire service. The same applies to incapacity on the part of GÄMMERLER.
- If the impossibility or incapacity occurs during the period of acceptance default or if it is caused by the default of the customer then the customer remains obligated to provide service in return.
- The customer may only terminate in accordance with legal stipulations if a delay in installation is the responsibility of GÄMMERLER, either due to gross negligence or deliberate action.
- In the event of unforeseen events as described in Paragraph V (Installation time) that considerably alter the business significance or the content or scope of installation services to the provided by GÄMMERLER, GÄMMERLER is entitled to terminate the contract either entirely or in part where no adjustment to the contract is economically reasonable.
- No right exists for the customer to damage claims due to the exercise of a right to terminate by GÄMMERLER in accordance with Subparagraph X.4. If GÄMMERLER intends to make use of its right to terminate, it shall advise the customer immediately of that intention.
XI. Other items
- The place of fulfilment for payment of the installation costs shall be the company domicile of GÄMMERLER.
- The legal domicile shall always be the domicile of GÄMMERLER. GÄMMERLER is, however, entitled to initiate litigation at the domicile of the customer.
- The Law of the Federal Republic of Germany is exclusively applicable.
UN-Purchasing Law is not applicable. .