General conditions of supply and payment of Engineering Office Genge
1 Scope of Application
All my services for business with legal entities are exclusively governed by the following General Conditions of Supply and Payment unless otherwise agreed upon in each individual case. Any deviating conditions or confirmations of the Customer will be applicable only if, and to the extent that, I have given my express written consent. In particular, my silence on such deviating conditions of the Customer may not be construed as acknowledgement or consent. Such deviating conditions or confirmations of the Customer are hereby expressly objected to.
2 Contract Conclusion and Effectiveness
2.1 My offers, including those based upon my own planning work, are subject to change without notice. An order is deemed to be accepted only if I have acknowledged acceptance in writing.
2.2 Any side agreements and all other agreements will be effective only if expressly confirmed by me in writing.
3.1 My quoted prices are net prizes. Statutory Value Added Tax, if any, will be in addition.
4 Terms of Payment
4.1 I will be under no obligation to effect delivery or further deliveries before any invoiced amounts have been settled. If payments are made late, I reserve the right to automatically adjust the agreed delivery and performance dates for the corresponding period of the delay.
4.2 The day of payment will be considered to be the day of my receipt of the amount due or of the credit entry on my account. Further claims for due and default interests in the legal amount as well as for damages because of late payment will remain uneffected.
4.3 If any of the terms of payment have not been observed of if I learn of circumstances which, in my reasonable business judgement, give rise to justified doubts regarding the Customer's creditworthiness, including any facts already existing upon formation of the contract but not known to me at that time, I will be entitled in such cases, notwithstanding any further legal claims, to require prepayment or a reasonable respite period for providing any such securities, I may withdraw from the contract or claim for for damages because of non-performance.
4.4 The Custumer may exercise a right of retention or set-off only with respect of such counter-claims which have not been disputed or finally adjudged. I will be intitled to declare a set-off even if the mutual claims to be set off arose in different currencies. In such case the medium exchange rate as officially fixed in Frankfurt on the day of set-off will be deemed applicable for conversion.
5 Taxes and charges
Any and all taxes, customs duties, charges and levies imposed outside the Federal Republic of Germany in relation to the execution of my supplies and services are to be borne by the Customer.
6 Scope of Supplies and Services
6.1 The scope of my supplies and services has to comply with the offer and order confirmation. Any reference to standards, similar technical rules, other technical descriptions and illustrations of supplies and services and / or parts on offer and sale literature shall be considered as description only and not express warranty of certain characteristics of the delivery item. Certain characteristic of the equipment and performance parameters are, in principle, only deemed expressly warranted by me if expressly confirmed in writing.
6.2 My services do not compromise any further works which are to be taken by the Customer, in particular delivery of parts or materials, or the provision of services which have to be expressly specified in my offer. As far as I support during commissioning, there will be no warranty for the function of a plant in which other people are involved.
6.3 Any modifications of, or deviations from the scope of services required by the Customer require my prior written consent. Any such modification or deviation, including those arising out of or in connection with official licenses and permits will be taken into consideration and continuously documented in corresponding supplements. Any additional expenses associated therewith will be charged separately to the Customer.
6.4 My technical and documentary execution of services shall be in conformity with DIN and VDE. It is based on the metric system.
7 Time and Delivery
7.1 Delivery dates and periods shall be agreed upon expressly and in writing in order to be binding. In case of any delivery dates and periods which are subject to change or only approximate (e.g., app., about, etc.) I shall use my best effort to comply with them.
7.2 In the case of modification of, or deviation from, the scope of services (clause 6.3), new delivery periods shall be fixed.
7.3 Any claims for damages because of default or non-performance - irrespective of the reason thereof - may be asserted in accordance with the provisions set out in clause 9.
7.4 I will not be in default as long as the Customer is in default with the performance of any obligations toward me, including obligations arising out of any other contracts.
7.5 In case of non-delivery, incorrect or late delivery or non-performance, incorrect or delayed performance of any services by my suppliers for reasons beyond my responsibility or in any event beyond of force majeure, I will be entitled to delay the delivery for the period of such obstruction or withdraw from the contract, either in whole or in part. Strikes, lock-outs, administrative orders and actions, shortage of energy and raw material, shortage of transport capacity, business obstacles beyond my responsibility, e.g. by fire, flood, destruction of machinery and any other obstacles from that, from an objective point of view, have not been caused by my fault, shall also be considered as Force majeure. The above provisions will also apply if any circumstances mentioned therein should arise after me having been in delay. The costs caused by the delay have to be borne by the Customer.
7.6 If a binding delivery date or delivery period has been agreed upon and because of an event as described under clause 7.5 above such delivery date or period is exceeded, the Customer may require me to declare, within the period of two weeks, whether he want to withdraw from the contract or effect delivery within a reasonable respite period. If I do not make a declaration, the Customer will be entitled to withdraw from the part of the contract yet outstanding.
8.1 In the event of defects, I am obliged either to repair the defect free of charge or to refuse re-performance pursuant to the statutory provisions.
8.2 Detection of defects have immediately to be reported to me in writing by specifying the damage occurred in detail.
8.3 The Customer has to give me the time and opportunity required for the detection of the defect and the necessary remedial action.
8.4 If I do not comply with the obligation according to clause 8.1, the Customer may, at its option, either withdraw from the contract, or reduce the purchase price, after he has set a reasonable respite period to me which has expired, unless such respite period is legally unnecessary. The same applies if at least two attempts of repair failed and further attempts are reasonably unacceptable, or if any repair is impossible. In case of withdrawal from the contract the Customer is liable for any deterioration, destruction and untaken utilization not only for his own reasonable diligence, but for any negligence.
8.5 Any other claims for damages or reimbursement of the Customer because of, or in connection with, defects or consequential damages based on defects, irrespective of their legal basis, will exist in accordance with the provisions laid down in clause 9 only. Also in this case, I will be liable for typical foreseeable damage only.
8.6 In case of non-contractually supplied service, the Customer will only be entitled to rescission of the contract or replacement delivery if claims for compensation against me are excluded or if any utilization of such supply and the claiming for compensation of the remaining damage is unreasonable for the Customer. In these cases, I am first entitled to rectify such defect. If such rectification of the defect concerned is not successful and / or causes an unreasonable delay, the Customer shall be entitled at its option, to declare the contract avoided. For this purpose, the Customer will, at his own discretion, be entitled to declare rescission of the contract or request replacement delivery. The Customer will also be entitled as to the same effect, if the rectification of the defect causes unreasonable inconvenience or if uncertainty regarding reimbursement of any expenses of the Customer exists.
8.7 In the event of unjustified complaint by the Customer, I will be entitled to invoice the Customer for the expenses incurred on the basis of the hour spent plus travel expenses.
8.8 In case I request additional material and / or working hours during warranty actions, I will be obliged to acknowledge such request by filling in respective receipts or by signing respective time sheets setting out the work performed. Material receipts or time sheets not countersigned by me will not be compensated by me.
8.9 In the case of fraudulent concealment of a defect any claims of the Customer will exclusively be exclusively be subject to the statutory provisions.
9 Limitation of Liability
9.1 For any claims for damages against me and based upon breach of duty on the grounds of negligence, irrespective of the legal basis, I may be held liable in case of slight negligence only if major contractual duties are violated and, thus, the purpose of the contract is endangered. Otherwise, my liability for slight negligence is excluded.
9.2 In the event of liability under clause 9.1 hereof and strict liability, I will be liable only for typical and foreseeable damage only. Claims for vain expenses by the Customer are excluded.
9.3 My total cumulative liability towards the Customer is in respect of any and all claims which may arise under the contract in tort or otherwise, but not towards claims for liquidated damages, third parties claims for property damage or patent infringement, warranty and guarantee claims and including environmental liabilities and damages. It shall in no event exceed 10% of the net price.
9.4 The exclusion of liability under clause 9.1 to 9.3 applies also to the same extent with respect to my legal representatives and vicarious agents.
9.5 My liability is always excluded if the customer continues operation of the plant despite my written instruction to stop or reduce the operation of the plant until the defect has been remedied.
9.6 All claims for damages and reimbursement of expenses against me become barred latest one year following the notice to the Customer, in the case of tort after getting knowledge or gross negligent ignorance of the circumstances which justify the claim or of the person liable.
10 Applicable Law
Unless explicitly agreed otherwise, all legal relations between the Customer and me are exclusively governed by the laws of the Federal Republic of Germany. The United Nations Convention on Contracts on International Sale of Goods (CISG) does not apply.
11 Change of Contract, Rescission
Changes to or rescission of the Contract must be in written form. This also applies to agreements regarding revocation of this present requirement for written form.
12 Place of performance and Venue
12.1 Place of performance for all contractual obligations is the court in Dortmund, unless the law requires that otherwise. I will, however, also be entitled to sue the Customer at his general venue.
12.2 In the case of dispute, the German version of these General Conditions of Supply and Payment will prevail. The English version is for information only.
Engineering Office Genge
Kirchhörder Str. 106
+49 231 137 12 86