General terms and conditions
General terms and conditions
Status: January 2006
A.) Terms and Conditions of Sale and Delivery for the Supply of Machines, Systems, Spare and Assembly Parts No. 85
B.) Supplier terms and conditions for assembly, maintenance and service: Status 1. 1. 2001
C.) Warranty condition water treatment 1.1.2006
A.) Terms and Conditions of Sale and Delivery for the Supply of Machines, Systems, Spare and Assembly Parts No. 85
I. Offer to buy
(1) Initial tenders and designs shall normally be submitted free of charge and without any attitude. Further offers and design work shall only be carried out free of charge if the delivery contract is and remains legally effective. The engineering planning expenditure described in the offer shall in any case be invoiced additionally by the supplier, even if the order is placed.
The documents belonging to the offer, such as illustrations, drawings, weights and dimensions, are only approximate. unless they are expressly designated as binding. The supplier reserves the property rights and copyrights to cost estimates, drawings and other documents; they may not be made accessible to third parties. The supplier is obliged to make plans designated by the customer as confidential accessible to third parties only with the customer’s consent.
II. scope of delivery
The Supplier’s written order confirmation shall be decisive for the scope of delivery. Subsidiary agreements and amendments require the written confirmation of the supplier. Information and assurances about services etc. are to be understood with the tolerance customary in the industry, but at least ± 5%. The supplier reserves the right to make technical changes to the delivery item in order to adapt it to the latest state of the art until delivery.
III. price and payment
Unless otherwise agreed, the prices shall be ex works, including loading at the works, but excluding packaging, but excluding value added tax at the applicable statutory rate.
In the absence of a special agreement, payment shall be made without any deduction free Supplier’s paying agent, namely 1/3 down payment after receipt of the order confirmation, 1/3 as soon as the Purchaser has been informed that the main parts are ready for dispatch, the remainder within a further month. Spare and assembly parts net 10 days after date of invoice.
3. 4 % above the respective discount rate of the Deutsche Bundesbank will be charged as annual interest if the payment deadlines are culpably exceeded.
4. the set-off due to possible counterclaims of the purchaser which are disputed by the supplier and have not been legally established shall not be admissible.
5. the supplier reserves the right to adjust the price if the customer requests changes.
IV. delivery period
The delivery period begins with the dispatch of the order confirmation, but not before the provision of the documents, approvals, releases to be procured by the customer and before receipt of an agreed down payment.
2 The delivery period shall be deemed to have been observed if the delivery item has left the factory or readiness for dispatch has been notified by the end of the delivery period.
The delivery period shall be extended appropriately if unforeseen hindrances occur which are beyond the Supplier’s control – irrespective of whether they occur at the Supplier’s works or at his subcontractors – e.g. in the event of measures within the framework of industrial disputes, operational disruptions, rejects, delays in the delivery of essential raw materials and building materials, insofar as such hindrances demonstrably have a considerable influence on the completion or delivery of the delivery item. The Supplier shall not be responsible for the aforementioned circumstances even if they arise during an already existing delay. In important cases, the supplier will inform the customer of the beginning and end of such hindrances as soon as possible.
If the Purchaser demonstrably suffers damage due to a delay caused by the Supplier’s own fault, he shall be entitled to claim compensation for delay to the exclusion of further claims. For each completed week of delay, it shall amount to ½ per cent, but in total no more than 5 per cent of the value of that part of the total delivery which cannot be used on time or in accordance with the contract as a result of the delay.
5. if dispatch is delayed at the request of the customer, the customer shall be charged the costs incurred for storage – in the case of storage at the supplier’s works, however, at least 1/2 per cent of the invoice amount – for each month, beginning one month after notification of readiness for dispatch.
6. compliance with the delivery time requires the fulfilment of the contractual obligations of the customer. Any subsequent change in the execution of the order at the request of the Purchaser shall correct the Supplier to an appropriate extension of the delivery period.
V. transfer of perils
The risk shall pass to the customer at the latest when the delivery parts are dispatched, even if partial deliveries are made or the supplier has assumed other services, e.g. shipping costs or delivery and installation. The Supplier shall insure the consignment against theft, breakage, fire and water damage at the expense of the Purchaser within the scope of the existing transport insurance with the Supplier.
If dispatch is delayed as a result of circumstances for which the Supplier is not responsible, the risk shall pass to the Purchaser on the day on which the goods are ready for dispatch; however, the Supplier shall be obliged, at the request and expense of the Purchaser, to take out the insurances required by the Purchaser.
(3) Delivered items, even if they show insignificant defects, are to be accepted by the purchaser without prejudice to rights under Section VII.
4. partial deliveries are permissible.
VI. retention of title
The Supplier shall retain title to the delivery item until all claims of the Supplier against the Purchaser arising from the business relationship have been settled.
The Supplier shall be entitled to insure the delivery item against fire, water and other damage at the Purchaser’s expense, unless the Purchaser has demonstrably taken out such insurance himself.
The customer may neither pledge the delivery item nor assign it as security. In the event of seizures, confiscations or other dispositions by third parties, the Supplier must inform the Supplier thereof without delay.
4 In the event of conduct on the part of the Purchaser contrary to contract, in particular default in payment, the Supplier shall be entitled to take back the Retained Goods after issuing a reminder and the Purchaser shall be obliged to surrender the Retained Goods. The assertion of the retention of title and the seizure of the delivery item by the Supplier shall not be deemed withdrawal from the contract.
5. if the reserved goods are used to fulfil a contract of sale, a contract for work and services or a contract for work and materials, the resulting claim shall be assigned to the supplier in advance in the amount of the invoice value of the supplier’s claim. The supplier hereby accepts the assignment. The customer is entitled to collect this claim until revoked. In the event of revocation, he must hand over all documents and provide the necessary information.
VII Liability for Defects in the Delivery
The supplier shall be liable for defects in the delivery, including the absence of expressly warranted characteristics, to the exclusion of further claims notwithstanding Section IX, 4, as follows:
1. all those parts shall be repaired or replaced free of charge at the Supplier’s discretion and subject to equitable assessment, which within 9 months – in the case of multi-shift operation within 6 months – from commissioning or installation are demonstrably unusable or considerably impaired in their usability as a result of a circumstance prior to the transfer of risk – in particular due to faulty design, poor construction materials or defective workmanship – are unusable or their usability impaired. The supplier must be notified immediately in writing of the discovery of such defects. Replaced parts become the property of the supplier.
If dispatch, installation, commissioning or installation is delayed through no fault of the Supplier, liability shall expire no later than 12 months after transfer of risk.
No warranty is given for used machines.
The supplier’s liability for essential third-party products shall be limited to the assignment of the liability claims to which he is entitled against the supplier of the third-party product.
The right of the customer to assert claims arising from defects shall in all cases expire 6 months from the time of the timely notification of defect, but at the earliest upon expiry of the warranty period.
3. no guarantee is assumed for damages which have arisen for the following reasons. Unsuitable or improper use, faulty assembly or commissioning by the customer or third parties, natural wear and tear, faulty or negligent treatment – in particular excessive strain, unsuitable operating materials, replacement materials, defective construction work. unsuitable subsoil, chemical, electrochemical or electrical influences, insofar as they are not attributable to fault on the part of the supplier.
4. after consultation with the supplier, the customer shall give the supplier the necessary time and opportunity to carry out all repairs and replacement deliveries which the supplier deems necessary at his reasonable discretion, otherwise the supplier shall be released from his liability for defects. Only in urgent cases where operational safety is at risk and to prevent disproportionately large damage, of which the Supplier must be notified immediately, or if the Supplier is in default with remedying the defect, shall the Purchaser have the right to remedy the defect itself or have it remedied by third parties and to demand reasonable reimbursement of its costs from the Supplier.
Of the direct costs arising from the repair or replacement delivery, the Supplier shall bear – insofar as the complaint proves to be justified – the costs of the replacement part including dispatch as well as the reasonable costs of dismantling and installation, furthermore, if this can be reasonably demanded in the individual case, the costs of any necessary provision of his fitters and assistants. In all other respects the customer shall bear the costs.
The warranty period for the replacement part and the repair shall be 3 months, but shall run at least until expiry of the original warranty period for the delivery item. The period for liability for defects in the delivery item shall be extended by the duration of the interruption of operation caused by the repair work.
7. any modifications or repair work carried out improperly by the Purchaser or third parties without the prior approval of the Supplier shall invalidate any liability for the resulting consequences.
8. further claims of the purchaser, in particular a claim for compensation for damages which have not occurred to the delivery item itself, are excluded. This exclusion of liability shall not apply in the event of intent or gross negligence and in the absence of expressly warranted characteristics, if the purpose of the warranty was precisely to protect the customer against damage that did not occur to the delivery item itself.
VIII Liability for ancillary obligations
If the delivered item cannot be used by the customer in accordance with the contract due to the fault of the supplier as a result of omitted or faulty execution of proposals and consultations before or after conclusion of the contract as well as other contractual ancillary obligations – in particular instructions for operation and maintenance of the delivered item – the regulations or sections VII and IX shall apply accordingly to the exclusion of further claims by the customer.
IX. Right of the Purchaser to withdraw from the contract and other liability of the Supplier
1. the purchaser may withdraw from the contract if the entire performance becomes finally impossible for the supplier before the transfer of risk.
If there is a delay in performance within the meaning of Section IV of the Terms and Conditions of Delivery, and the Purchaser grants the Supplier in default a reasonable grace period with the express declaration that it will refuse acceptance of the performance after expiry of such grace period, and if the grace period is not observed, the Purchaser shall be entitled to rescind the contract.
3. if the impossibility occurs during the default of acceptance or through the fault of the purchaser, the latter shall remain obliged to pay consideration.
The Purchaser shall also have a right of rescission if the Supplier allows a reasonable grace period granted to it for the repair or replacement delivery of a defect for which it is responsible within the meaning of the delivery conditions to elapse fruitlessly through its fault. The purchaser’s right of withdrawal shall also exist in the event of impossibility or inability of the repair or replacement delivery by the supplier.
5. all other further claims of the purchaser are excluded, in particular claims for rescission, termination or reduction as well as claims for compensation of damages of any kind, including such damages that have not occurred on the delivery item itself. This exclusion of liability does not apply under the conditions of VII, 8, sentence 2.
6. 15% of the purchase price shall be deducted for inspection and storage when returning ordered spare/assembly parts.
X. Assembly /Repair
For assembly/repair work, the special supplier’s assembly conditions shall apply as part of these conditions.
XI. place of jurisdiction
The place of jurisdiction for all disputes arising from the contractual relationship shall be Hamburg if the customer is a registered trader, a legal entity under public law, a special fund under public law or if its registered office was relocated abroad after conclusion of the contract. For the rest, the statutory places of jurisdiction shall apply.
B.) Supplier terms and conditions for assembly, maintenance and service work
Status 1. 1. 2001
I. Validity of the conditions
1 . Assembly, maintenance and all other services of ERT Refrigeration Technology GmbH (hereinafter referred to as ERT Refrigeration Technology GmbH) are provided exclusively in accordance with these terms and conditions. In addition, the sales and delivery conditions for the delivery of machines, systems, spare and assembly parts No. 85 of ERT Refrigeration Technology GmbH in the current version shall apply. Conflicting or different terms and conditions of the customer are hereby rejected. Changes, subsidiary agreements and other deviating agreements cannot be agreed verbally with the client by employees of ERT Refrigeration Technology GmbH, unless they are entitled to a corresponding power of representation by law. Such oral agreements require written confirmation by ERT Refrigeration Technology GmbH in order to be effective.
II. wage costs, working time
1. wage costs: working hours within the normal working hours on a working day within the framework of the collectively agreed weekly working hours are calculated net according to the current rates of ERT Refrigeration Technology GmbH.
2. installation surcharges: The current rates of ERT Refrigeration Technology GmbH apply for work under difficult conditions – in particular in hot or cold or particularly narrow rooms, at particularly dirty assembly sites or on pipelines charged with chemicals. This also applies to surcharges for dangers and difficulties during cleaning work.
Third, overtime pay: Overtime as well as working hours on Sundays and public holidays shall be charged at the current surcharges of ERT Refrigeration Technology GmbH to the rates specified in Section II 1, 2.
4. working hours: preparation, travel, waiting and travelling times are considered working hours and will be invoiced accordingly.
Five. Delays: If the service is delayed through no fault of ERT Refrigeration Technology GmbH, any additional expenses incurred – in particular travel and waiting times – will be charged separately; this also applies to flat-rate agreed service prices.
6. working time certificates: The client has to confirm in writing to the employees of ERT Refrigeration Technology GmbH the working hours spent on the service report. In any case, the service reports carried out by the employees of ERT Refrigeration Technology GmbH shall be used as the basis for the invoices of ERT Refrigeration Technology GmbH and shall be authoritative for both parties.
III. travel expenses
The travel expenses of the employees of ERT Refrigeration Technology GmbH will be charged for the outward and return journey from the respective place of residence of the employee or his last place of work to the place of performance at the client as well as for the daily journeys from the accommodation to the place of work. If motor vehicles are used for this purpose, the current billing rate of ERT Refrigeration Technology GmbH is calculated per kilometre driven. When using the Bundesbahn, engineers and technicians will be charged for 1st class rail costs, other employees for 2nd class rail costs plus surcharges. In the case of necessary air travel, the costs incurred will be charged. Travel expenses also include the cost of transport and transport insurance, both personal luggage and work equipment. ERT Refrigeration Technology GmbH reserves the right to choose the means of transport to be used in any case.
IV. Accommodation and other costs
1. the accommodation costs will be charged to the client. Overnight stays are calculated flat rate on the basis of the current rates of ERT Refrigeration Technology GmbH. The choice of appropriate accommodation is reserved exclusively for the employees of ERT Refrigeration Technology GmbH.
2. additional expenses incurred by the employees of ERT Refrigeration Technology GmbH for telephone, postage and the like will be charged separately.
3. the client has to create in time all conditions at the place of delivery or assembly which are necessary for ERT Refrigeration Technology GmbH to render the service without delay under reasonable working conditions. In particular, the customer must provide at his own expense the necessary assistants, heavy tools and equipment (crane, scaffolding), operating materials, sanitary facilities and containers for the disposal of assembly and packaging materials.
4. the measures necessary for the protection of employees and property of ERT Refrigeration Technology GmbH shall be carried out by the client; existing safety regulations shall be notified to ERT Refrigeration Technology GmbH. In the case of work outside the company working hours, an employee of the client must be present.
5. the client must also provide suitable – tempered – recreation and work rooms for the employees of ERT Refrigeration Technology GmbH as well as suitable lockable rooms for the storage of the tools and other work equipment brought along by them. In the event of violation of these obligations by the client, ERT Refrigeration Technology GmbH is entitled to interrupt the work and to claim the resulting damage.
V. cost of materials
The material required for the respective work will be invoiced according to the material certificates issued by the employees of ERT Refrigeration Technology GmbH, unless specified individually in the order confirmation. These are binding for both parties and must also be signed by the client. The calculation of the material costs and the costs for the use of special equipment of ERT Refrigeration Technology GmbH shall be based on the current rates of ERT Refrigeration Technology GmbH.
The client is obliged to accept the work as soon as he has been notified of its completion. Acceptance confirms the proper execution of the services rendered. The risk shall pass to the customer upon acceptance. Acceptance shall also be deemed to include the not merely trial commissioning by the customer.
VII. invoicing and payment
Invoicing is always carried out after completion of the work. However, ERT Refrigeration Technology GmbH reserves the right to make interim invoices and partial payments. The calculation is based on the current rates of ERT Refrigeration Technology GmbH. The invoice amounts shall become due for payment immediately and without deduction upon invoicing.
C.) Warranty condition water treatment
I. Validity of the conditions
Successful water treatment by ERT Refrigeration Technology GmbH can only be guaranteed under the following conditions:
1. treatment proposals shall be based on the chemical and technical data determined by ERT on site at the time of system acceptance.
2. factory changes to the system configuration and the quality of the water to be treated must be reported to ERT immediately.
The operating instructions provided by ERT and additional operating instructions in written form (KD report) must be strictly observed by the responsible operating personnel.
4. the continuous water tests required by the operating personnel shall be carried out conscientiously and regularly after instruction by ERT; the results obtained shall be recorded and made available for inspection by ERT. ERT customer service must be notified immediately of any changes in measured values without prior operational intervention.
(5) ERT cannot be held responsible or liable for any consequences and/or omissions caused by intentional or unintentional omissions or misrepresentation by the relevant operating personnel.
6) The timely refilling of consumable chemicals must be monitored and carried out by the responsible operating personnel. The connection of the correct containers with water conditioning agent must be ensured by the responsible operating personnel.
7. maintenance and adjustment work to be carried out by the responsible operating personnel may only be carried out by employees who have been instructed by ERT and who have the appropriate operating instructions and instructions.
8. record changed settings and/or measurements. Any arbitrary and uncoordinated changes to the settings of the ERT dosing devices by the operating personnel shall be the sole responsibility of the operating company; ERT shall in no case be responsible for any consequences and consequences.
9. responsibility for compliance with all ERT water treatment guidelines between routine customer service visits rests with the responsible operating personnel of the customer’s plant.
10 Natural wear and tear and material consumption are excluded from the warranty.
11 A warranty acceptance according to VOB is excluded.
12. consequential damages of any kind are generally excluded.
Jurisdiction : Hamburg
Commercial register : HRB 37433
ERT Refrigeration Technology GmbH
Beutnerring 5; D-21077 Hamburg, Germany
Phone : (040) 76 10 48 0