General terms and condition for services (AGB Service)

 

I. General information

1. Our supplies and services are based exclusively on our general terms and conditions. These are used in the version valid at the time even in the case of future business between the contract parties, without it being necessary to refer to these general terms and conditions again.

2. These conditions count as accepted at the time of acceptance of the supplies and services at the latest. Counter confirmations by customers with reference to their business conditions are hereby opposed.

3. If any of the terms of these general terms and conditions are or become wholly or party ineffective, the validity of the remaining conditions will not be affected by this.

II. Product proposals and contract conclusion

1. Our proposals are subject to change. Finalisation of contracts and agreements only become binding after our written order confirmation or through our delivery. If it is the latter, the invoice replaces the order confirmation. Supplements, amendments and additional agreements only become binding after our written confirmation.

2. Invoices, diagrams, measurements, weights and other performance data in brochures, circulars, price lists , other publications or in our proposal and/or the documents belonging to them are only approximately authoritative. They only include assurances if they have been expressly described as such by us in writing.

3. We reserve the right to the ownership, copyright and other rights of documents belonging to the proposal. Third parties can only access them with our approval.

4. We reserve the right to undertake modifications and improvements with respect to construction, use of materials and execution as long as the purpose of the contract is not drastically changed and the change does not seem unacceptable to the customer.

III. Prices

1. All prices apply without special written agreement for the scope of supplies and/or services listed in the order confirmation ex supplying factory, excluding assembly, freight, packaging, insurance costs. The legal VAT is not included in our prices. It is indicated separately on the invoice on the day of invoicing at its legal amount. Discounts require special written agreements.

2. The prices indicated are based on cost factors at the time of the order confirmation. They apply to a period of 4 months after contract conclusion up to the rendering of the supplies and services.

3. Cost estimates are non-binding.

4. Lump sum prices agreed on for assembly do not include surcharges for overtime work, work at night, on Sundays and public holidays. These have to be calculated additionally.

IV. Payment and delays

1. Unless otherwise indicated in the order confirmation, the invoice amount must be paid in cash, without deductions, to our account within 10 days of the invoice date.

2. Bank drafts are only accepted after prior agreement and only for the sake of payment. Discounts and fees for bank drafts including VAT are charged to the ordering party based on the rates calculated by the banks in question.

3. If customers are delaying payment or do not fulfil their payment obligations in any other way, for example, a cheque or bank draft is not honoured, we are entitled to immediately to demand all payments from the customer without consideration for any extension agreements according to the duration of the accepted and not yet due bank drafts. We are also entitled to only execute outstanding supplies or services against advance payment or provision of a guarantee by the customer.

4. Charging with a counter claim is only permissible if the counter claim is undisputed or has been determined legally. The enforcement of a right to retention is excluded if the counter claim does not originate out of the same contractual relationship.

V. Delivery time

In case of delays with the delivery date agreed on, the ordering party has to set an appropriate subsequent deadline.

VI. Transfer of risk and dispatch

1. The costs and risk for dispatch of goods are borne by the customer. Risk is transferred to the customer at the time when the goods are handed over to the freight forwarding agent, but at the time the goods leaves our factory at the latest.

2. The type of dispatch and packaging is selected by us. Transport and all other packaging based on the packaging regulations are not taken back, with the exception of pallets. The ordering party is obliged to bear the costs for disposal of packaging.

3. Our supplies/services count as complete after a test start up has been carried out. They count as accepted after 12 days following a written notification on the completion of the service, in which the customer must be told about the deadline separately.

VII. Liability for defects

1. The customer must immediately examine all supplies and services for defects, completeness and identification with the contract.

2. We have the right to cover for the liability for defects through subsequent improvement or through a replacement. Customers reserve the right to demand a decrease in payment (reduction) or withdrawal from the contract, as they wish, in cases of failure of subsequent improvements or replacements. In the case of construction services, the customer cannot demand withdrawal from the contract. We only pay compensation for damages if one of our assistants is charged with intent or gross negligence. In case of injuries to life, body or harm to health, we pay compensation for damages for every violation.

3. The deadline for liability for defects in objects is 12 months.

4. Any guarantee is excluded inn the case of delivery of used goods or interchangeable parts.

VIII. Liability

1. In all cases in which we are obliged to pay compensation for damages or expenditure contrary to the afore mentioned conditions due to contractual or legal bases for claims, we are only liable if we, our managing staff or assistants have been charged with intent, gross negligence or injury to life, physical injury or harm to health.

2. Liability dependent on blame according to the product liability law remains unaffected. Liability for the culpable violation of important contractual obligations also remains unaffected. The liability is limited to foreseeable damages typical to the contract except in cases mentioned in clause 1. Amendments to the burden of proof that put the ordering party at a disadvantage are not connected to the aforementioned regulation.

IX. Reservation of ownership rights and safety

1. The goods remain our property until the purchase price has been fully paid. The reservation of ownership rights counts as a security for our claim for the balance in cases of current invoices, even when the customer has paid based on specifically described claims. If the customer is a registered trader, the reservation to ownership rights remains until full payment of the total liabilities ensuing out of the business relationship including any possible liabilities taken in the interest of the customer.

2. Processing or reconstruction of goods delivered by us and still owned by us always takes place by our orders without any liabilities on our side arising out of this. If our ownership expires due to mixing or connection, we already agree at that time, that we will apply for co-ownership of the new object whereby the amount of the invoice value forms the basis for the value assessment.

3. At the time of contract conclusion, customers surrender all claims they are entitled to including claims for balance from current account agreements from a sale, processing or machining or connection to goods delivered by us, for safety's sake. This also applies to other claims against third parties ensuing to the customer in connection with the goods. We accept the withdrawal. The withdrawal is limited to the delivery value according to the amount stated in our invoice. The customer is obliged to declare withdrawal on our request in cases of delayed payment. In such cases, the customer is obliged to provide us with the required information and documents. We are also entitled to inform the customer's debtor of the withdrawal and to demand payment from them.

4. The delivered goods cannot be pawned or transferred elsewhere without our approval. If third parties demand access to the goods on conditional sale, the customer is obliged to refer to us as the owners and to inform us immediately.

5. If customers behave in violation of the contract – particularly in cases of delayed payment – we are entitled to enforce our reservation to ownership rights and to demand the goods on conditional sale be returned immediately. The enforcement of our reservation to ownership rights does not represent a withdrawal from the contract.

6. If the total value of the security ordered by the customer exceeds our claim by more than 20%, we are obliged to release securities based on the customer’s wishes.

X. Conditions for assembly and installation

The ordering party must provide our fitters and mechanics with a room that can be locked to keep materials, tools and items of clothing, free of cost.

XI. Preparation of the construction site and work process

1. Unless otherwise agreed on, the ordering party must transfer all materials from the arrival dock and to store them carefully, protected from adverse weather conditions, until the fitter or mechanic arrives.

2. The preparation of container pits and pits for pipelines, the storing of containers in the construction pits. The foundations, openings, pipe canals, waste water facilities, conduits as well as painting are incumbent upon the ordering parties as long as these services are not part of our order and must be completed on time so that assembly can start as soon as the fitter or mechanic arrives. In case of groundwater, rainwater or head water, the containers must be secured against buoyancy on the site side. The safety measures required for this purpose must therefore be arranged by the ordering party. We basically reject liability for this on our part.

3. The ordering party must bear the costs for early recalling of the fitter or mechanic or stays on site caused by the ordering party or the site management. In any case, the ordering party must look after the heating, lighting and guarding of the construction site, timely procurement of tools, equipment and operating materials.

4. It is up to the ordering party whether they want to conclude an insurance policy against such risks. The materials received must be handed over to the fitter unpackaged for the purpose of inventory checking. Only our drawings and instructions issued to the fitter are decisive for executing the plant. Any deviations from this required by the ordering party must have our prior written approval.

Xll. Starting up the plant/unit

1. Our fitters and mechanics are obliged to subject the plants to a thorough test run immediately after completion of assembly  and to show them in operation appropriately. The handing over of the plant is then final. If the presentation can only take place later for reasons for which we are not responsible, the expenditure incurred to us by sending another fitter or mechanic must be compensated for separately.

2. Both contract partners acknowledge the presentation of the plant under normal operating conditions or its official acceptance independent of each other as proof for the presentation of the plant according to the rules so that any defects found later do not release retroactive claims.

3. Once the plant has been started up, its settings are connected to operating conditions as well as instructions to operating staff. The ordering party is responsible for the acquisition of materials and operating materials.

XIII. Tank inspection

1. An inspection of the inner walls of the tank for damages is included in the tank cleaning services. The inspection will take place conscientiously, but excludes liability for existing damages and those that show up later as well as subsequent damages connected to this (particularly WHG damages). The protective measures suggested for any damages by corrosion that is found or protective measures that are applied correspond to the present state-of-the-art in technical findings. We are not liable for damages that occur in spite of this.

2. Tests for leak tightness are basically carried out at the risk and liability of the tank operator. We guarantee proper execution in accordance with the directives known to us.

XIV. Place of execution and jurisdiction

1. The place of execution for deliveries and payments – also for acceptance liabilities – is the headquarters of the contractor. The contractor is the company of the Goehler network of companies that has prepared the respective proposal or the corresponding order confirmation. The address can be found on the proposal or the order confirmation. You can find the locations of the Goehler network of companies under www.goehler.de

2. If the customer is a registered trader or public corporation, the place of jurisdiction is the place where the head office of the contractor is located. Customers who are not registered traders can be sued at this place of jurisdiction if they do not have any residence or domicile in the country or such is not known at the time of filing the suit.

3. The law of the Federal Republic of Germany , as agreed on, applies to all agreements and legal negotiations between us and the customer. The uniform laws for international purchase of movable assets and on the finalisation of international purchase contracts of movable assets are not applicable.

Status 17.11.2008