AGB

These conditions apply to all orders placed with the supplier by the purchaser. Within the limits laid down by law, and in so far as nothing in the individual clauses is agreed between the parties to the contract at variance therewith, these general conditions take precedence over all other conditions. In order to be effective, any conditions to the contrary on the part of the purchaser, together with changes, additions or subsidiary agreements, require the written acknowledgement of the supplier. Any other agreements between the parties to the contract will also be valid only in written form. Otherwise than as stated above, the purchaser recognizes the following General Terms and Conditions of the supplier, in their entirety, with the placement of his order or acceptance of the goods or services.

2.1. All documents relating to the quotation, e.g. illustrations, plans, drawings and data relating to weights, dimensions and performance, should be regarded only as being of an informative nature unless they are expressly designated as binding in the letter of confirmation or supply contract. 2.2. The supplier reserves the property rights and copyrights on his documents on transfer to the purchaser, irrespective of whether these are handed over before or after the contract is concluded. Neither the data nor the documents may be misused by the purchaser or made accessible to third parties without the prior express written permission of the supplier. 2.3. Documents transferred by the purchaser to the supplier remain the property of the purchaser. Plans and data designated as being confidential require the approval of the purchaser before being transferred to a third party e.g. a subcontractor. The responsibility for the correctness of the documents and information made available to the supplier lies exclusively with the purchaser. Amendments and additions are to be notified in writing to the supplier without delay. 2.4. The supplier accepts no liability for defects or faults attributable to errors in ordering or in the documents made available to the supplier, or to the provision of information by the purchaser which is either inadequate or delayed.

3.1. The supply contract will not be validly concluded until the supplier has confirmed the order in writing to the purchaser or until each party to the contract has received a copy of the supply contract or purchase order signed by both parties. 3.2. If the supplier has set a period of acceptance when submitting his written quotation, the contract will only be concluded if the purchaser forwards his written declaration of acceptance before the aforesaid period expires and this is received by the supplier within ten days of the date of expiry. 3.3. If the letter of confirmation from the supplier contains additions, curtailments or other changes by comparison with the purchase order, the agreement of the purchaser shall be considered to have been given if he does not immediately contest the letter of confirmation in writing. 3.4. Additions, amendments or secondary agreements require the written confirmation of the supplier to become effective. 3.5. The purchaser will be entitled to cancel an order accepted and confirmed by the supplier only on the condition that he undertakes to reimburse any costs incurred by the supplier up to the time of cancellation or to pay compensatory damages.

4.1. The scope of the delivery is as specified in the written confirmation of order by the supplier. Retrospective amendments to the scope of the delivery require the written confirmation of the supplier. 4.2. The supplier is entitled to introduce design modifications if these derive from state of the art developments or are actually necessary. If these affect the agreed selling price, a retrospective agreement with the purchaser will be required in this connection. 4.3. Protective devices are only included in the scope of delivery in so far as they are specified in law or specially agreed. 4.4. The supplier is entitled to make part deliveries.

5.1. All prices are net prices. As a rule, they are ex supplier’s works prices and exclude the costs of packing, loading, freight, postal charges and insurance. This also applies to part deliveries and part consignments by mail, etc. If applicable, the prices are subject to turnover tax/Value Added Tax, which will be additionally charged to the purchaser at the official rate in force on the day of the delivery. 5.2. The agreed prices are based on the cost factors applicable at the time the contract is concluded or calculated as applying at the time of execution, particularly the costs of materials and labour. If essential cost increases arise between the date of execution or delivery originally laid down and the actual date, particularly in the event of postponements of the date by the purchaser, the supplier will be entitled to impose corresponding supplementary charges. 5.3. Failing any special agreement, payments are to be made in cash, and without any deductions, to the supplier’s point of payment, at no cost to the supplier. Terms of payment are one third on receipt of the confirmation of order, one third on delivery or on notification of the readiness of the principal parts for dispatch, and one third within 30 days of the due date of the second third. If the price includes costs of installation or other services, these will be due for payment immediately after execution and receipt of the respective invoice. 5.4. If payments are not received within the specified periods, the supplier will be entitled to charge interest on arrears at the rate of 2% above the respective discount rate of the German Bundesbank without his needing to issue any special notice of default. 5.5. The purchaser may only set off claims by the supplier or apply the right to retain payment if the purchaser’s counterclaims are uncontested or a legally enforceable title exists against the supplier. 5.6. If the purchaser falls in arrears with is payments, the supplier may put off the fulfillment of his own obligations until the outstanding payments have been made, unless the arrears are attributable to an action or an omission on the part of the supplier. 5.7. The supplier will be entitled to refuse his services if, due to circumstances arising or made known to him after the conclusion of the contract, he has reason to fear that the counter obligations on the part of the purchaser will not be fully or punctually fulfilled.

6.1. The delivery period will commence with the dispatch of the confirmation of order or the issue of a copy of the contract. Adherence to delivery periods or the agreed delivery dates is subject to the complete, punctual fulfillment of the purchaser’s obligations under the contract, such as the receipt by the supplier of the data, plans, drawings, other documents, permits, releases, letters of credit and confirmations to be made available by the purchaser, and receipt of the agreed down payments. 6.2. The delivery period will be considered to have been met (subject to the conditions laid down in clause 1 above) if the principal parts of the consignment have left the factory by the time the period expires or the purchaser has been notified of their readiness for dispatch. 6.3. The delivery period will be extended to a reasonable extent, to the benefit of the supplier, if circumstances arise beyond the supplier’s control, after the contract has been concluded, irrespective of whether these occur in the factory of the supplier or one of his subcontractors, e.g. industrial disputes, fires, mobilization, sequestration, embargoes, revolts, shortages of means of transporting goods, general deficiencies in supplies, restrictions on energy consumption, operating faults, rejects, delays in deliveries of essential raw materials and building materials. Nor will these circumstances be attributable to the supplier if they arise during a delay already in existence. 6.4. The delivery period will also be reasonably extended if the purchaser fails to clarify all the requisite details promptly, or if the work of the supplier is adversely affected by delayed decisions or substantial retrospective changes on the part of the purchaser. 6.5. In a case where the purchaser incurs damage as a result of delays for which the supplier is responsible, a compensation payment for the delay can be agreed, to the exclusion of other claims on the part of the purchaser. A payment of this nature will generally be limited to 5% of the value of that part of the consignment as a whole which, as a result of the delay, cannot be used by the time required or in accordance with the terms of the contract. The amount and other details of a compensation claim of this nature are to be agreed in writing between the parties to the contract. 6.6. If the purchaser does not accept the delivery at the contractually agreed time, or if a retrospective extension of the delivery period is agreed at the purchaser’s request, the purchaser shall nevertheless make the agreed payments in the same way as if the deliveries had taken place on the original date. The purchaser is required to bear any costs incurred through the storage of the goods following notification of their readiness for dispatch at the rate of at least 0.5% of the contract price for each started month of storage in the supplier’s factory. The risk associated with the stored parts will pass to the purchaser. 6.7. If acceptance is delayed or suspended by the purchaser, the supplier will request the purchaser in writing to accept the delivery within a reasonable period of time. If the purchaser fails to comply with this request, the supplier may repudiate the contract in respect of the unaccepted part of the delivery by a single notification in writing and without recourse to judicial proceedings, and demand compensation from the purchaser for the damage incurred by his non fulfillment. The compensation payment shall be at least 25% of the contract price. In addition, the supplier will be entitled to utilize the entire consignment or that part of the consignment not accepted by selling it at the best possible price on the open market. The proceeds, after the deduction of costs (including utilization costs) which without particular proof will be set at 15% of the contract price for the unaccepted consignment, will be allowed to the purchaser against his debt. If the costs exceed 15%, the supplier will be required to provide proof of the amount. Any profit on the sale will accrue to the purchaser.

7.1. The risk will pass to the purchaser with the dispatch of the consignment at the latest. This will apply even if part deliveries are made or the supplier has undertaken to provide additional services, e.g. loading, transport, setting up, installation or commissioning. 7.2. The supplier is entitled and, at the request of the purchaser, under an obligation, to insure the consignment against breakages, damage in transit, fire, water and any other insurable risks, at the purchaser’s expense. 7.3. If the dispatch is delayed in accordance with clauses 6.6. and 7. or for any other circumstances for which the purchaser is responsible, the risk will pass to the purchaser from the time of notification of readiness for dispatch. The supplier is entitled and, at the purchaser’s request, is under an obligation, to take out the necessary insurance to cover the risk, at the purchaser’s expense. 7.4. Delivered parts are to be accepted by the purchaser, even if they exhibit faults (provided they cannot be regarded as of an essential nature), without prejudice to his rights as given in section 9.

8.1. The supplier will retain title to the object of the delivery until payments have been received and all the other debts due to him from the contract with the purchaser have been settled in full, including any claims for compensation or claims arising out of subsidiary obligations. 8.2. The supplier will be entitled to insure the delivered goods against theft, breakage, fire, water and other damage, at the purchaser’s expense, if the purchaser fails to provide evidence that he himself has taken out the necessary insurance. 8.3. The purchaser may neither pledge nor assign the object of the delivery as a security before the final transfer of title as per clause 8.1. The purchaser is required to notify the supplier immediately of any seizures, sequestrations or acts of possession by third parties. 8.4. If the purchaser behaves in a manner contrary to the terms of the contract, particularly falling in arrears with payments, the supplier will be entitled, after issuing a reminder, to demand the return of the object of the delivery and the purchaser will be under an obligation to release it accordingly. 8.5. If, according to the law to which the object of the delivery is subject, the retention of title is not possible but the supplier is nevertheless permitted to reserve other rights to the object of the delivery, the supplier will be entitled to all rights of this nature. The purchaser is under an obligation to support any measures by the supplier which will serve to protect his title or alternatively any other right arising out of the contract. 8.6. The buyer declares that, because his relationship with the plot of land is only transient and/or because the installation of the object of the delivery in a building is only of a transient nature, it will not form an essential constituent part of a plot of land or building.

9.1. The supplier is liable in full for any defects in the delivered goods, including the lack of expressly assured characteristics, to the exclusion of other claims, without prejudice to section 11. At the discretion of the supplier, all those parts will be repaired or replaced which prove to be unusable or whose usability is substantially impaired within twelve months of the transfer of risk as per clause 7.1., or in any case within six months at the most of the operational readiness of the object of the delivery on the purchaser’s premises, as a consequence of circumstances prevailing before the transfer of risk and for which the supplier is responsible, particularly as a consequence of faulty design, poor materials or defective workmanship. The discovery of faults of this nature is to be notified to the supplier immediately in writing. Replaced parts will become the property of the supplier. If delivery, setting up, installation or commissioning is delayed through no fault of the supplier, his liability will cease 15 months at the latest after the transfer of risk. For essential bought in parts, the liability of the principal supplier will be limited to the assignment of claims under guarantee made against him to the supplier of the bought in parts. 9.2. The right of the purchaser to enforce claims for deficiencies will expire in every case within six months of the date of notification (subject to this being given promptly) or, in any case, on the expiry of the contractually agreed guarantee period at the earliest. 9.3. The purchaser must give the supplier the necessary time and opportunity to establish notified defects and, at his discretion, to undertake all the repairs and supply all the replacements which appear to be necessary. Failing this, the supplier will be relieved of any liability for defects. Only in urgent cases posing a threat to operating safety, and to prevent unreasonably serious damage (of which the supplier is to be notified immediately), or if the supplier delays rectifying the defect, will the purchaser have the right to rectify the defect himself or have it rectified by a third party and to demand compensation for reasonable costs from the supplier. 9.4. Of the direct costs arising from the repair or replacement, the supplier will bear the costs of the replacement part (provided the complaint proves to be justified), including carriage, and reasonable costs for removal and installation plus, if this can be justifiably demanded by the circumstances of the individual case, the costs of providing any technicians and assistants which may be necessary. For the rest, the purchaser will bear the costs incurred. 9.5. The period of guarantee for the replacement part or repair will again be six months from operational readiness but, if applicable, will extend beyond this to the date of expiry of an originally extended period of guarantee. The period of liability for defects for the entire object of the delivery will be extended by the periods of operating stoppages caused by the repair work. 9.6. The guarantee obligations of the supplier apply only to defects which occur under the operating conditions envisaged by the contract or of a customary nature, and subject to correct use of the equipment as prescribed. They do not apply to normal wear or defects, the cause of which arises only after the transfer of risk. In particular, they do not apply to defects or their consequences resulting from operations carried out by the purchaser or third parties in an improper manner or without the permission of the supplier (e.g. maintenance, repairs and modifications). 9.7 The guarantee obligations of the supplier apply only to defects which occur under contractually envisaged or normal operating conditions, and subject to the equipment being used properly and as prescribed. They do not cover normal wear, or defects, the cause of which arises only after the transfer of risk. In particular, they do not apply to defects or the consequences thereof arising out of work carried out by the purchaser or third parties in an improper manner or without the approval of the supplier, such as maintenance operations, repairs or modifications. 9.8. The supplier gives no guarantee in respect of the correctness of the specifications of parts supplied and/or installed by outside personnel (third parties) or for the correct operation of the plant. In so far as such outside services are included in the supplier’s contract, his liability will be limited to defects attributable to faulty instructions or breaches of his supervisory duties for the said work. Otherwise than as above, the supplier assigns his claims against third parties to the purchaser. 9.9. The supplier accepts no liability for damage arising for the following reasons or from the conduct of the purchaser or third parties: unsuitable or improper use of the object of the delivery, faulty or negligent treatment, the imposition of excessive stress, the use of unsuitable operating consumables or corrosive, chemical, electrochemical, electrical or other influences, which were not provided for or could not have been foreseen within the terms of the contract. 9.10. The supplier may refuse to rectify the defect if the purchaser has failed to fulfill his essential obligations. The obligation to rectify defects will also cease to apply if the purchaser or a third party undertakes repair work or modifications to the object of the delivery or parts thereof without the prior approval of the supplier. 9.11. Any claims on the part of the purchaser other than as specified above, particularly claims for compensation not attributable to the object of the delivery itself, are excluded. This exemption from liability does not apply in a case of intent or gross negligence on the part of supervisory employees, or in the event of a lack of essential characteristics expressly assured if the assurance was actually intended to safeguard the purchaser against damage not occurring to the object of the delivery itself.

If, through the fault of the supplier, the delivered object cannot be used by the purchaser in accordance with the terms of the contract as a consequence of omissions or errors in proposals and advice given before or after the concluding of the contract, or any other secondary contractual obligations (in particular a lack of instructions for operating and maintaining the object of the delivery), the terms and conditions laid down in sections 9 and 11 will apply, to the exclusion of any further claims on the part of the purchaser.

11.1. The supplier may withdraw from the contract, wholly or in part, if the purchaser does not take delivery in due time, enters a condition verging on insolvency, particularly in the event of insolvency or bankruptcy proceedings being instituted against him, or if circumstances arise within the meanings of clauses 6.3 and 6.4 on the part of the purchaser or supplier, which, in spite of a reasonable extension of time, make the delivery impossible either wholly or in part. 11.2. The purchaser may withdraw from the contract if it finally becomes impossible for the supplier to carry out the entire undertaking before the transfer of risk. The same will apply in the event of the insolvency of the supplier. 11.3. If a delay occurs in the execution of the order within the meaning of section 6. of the Conditions of Supply, and if the purchaser allows the defaulting supplier a reasonable period of extension with the express declaration that he will decline acceptance of the goods/services on the expiry of this period, and the supplier is culpable of failing to meet the specified deadline, the purchaser will be entitled to withdraw. 11.4. If the state of non feasibility arises during a period of delay in acceptance or through the fault of the purchaser, the latter shall be under a reciprocal obligation. 11.5. The purchaser will also have the right of withdrawal if the supplier, through his own fault, allows a reasonable period of extension for a repair or replacement to rectify a defect for which he is responsible, within the meaning of these Conditions of Supply, to expire to no avail. The right of the purchaser to withdraw will also apply in other cases of repeated failures to carry out repairs or replacements on the part of the supplier. 11.6. All other far reaching claims by the purchaser, particularly for redhibition, termination or abatement and compensation for damage of any nature whatsoever, including in particular any such damage not occurring to the object of the delivery itself, are excluded (without prejudice to clause 9.11.).

12.1. None of the taxes levied on goods and services in the country of manufacture or, if applicable, taxes, duties and levies payable in the country of the purchaser or place of use will be included in the invoice price of the goods and services provided by the supplier. These will be charged additionally on the invoice. 12.2. In so far as the supplier or his installers are made responsible for duties and taxes in the country of the purchaser or place of use, the purchaser is under an obligation to undertake payment of the set amounts or, in so far as these have already been paid by the supplier, to reimburse them accordingly.

13.1. This contract is to be construed, and the duties of the parties of the contract undertaken, in a manner required by good faith and with due regard for customary practice. 13.2. If differences or disputes arise out of the contract or agreements relating to its execution, both parties are to endeavor initially to settle them in an amicable way. 13.3. If attempts to reach a settlement fail, either party may apply for a court of arbitration to be nominated to decide the dispute. In the case of domestic (i.e. German) businesses, application will be made through the President of the Chamber of Industry and Commerce, Frankfurt/Main. If the supplier and purchaser are based in different countries, the decision will be taken by the Court of Arbitration of the International Chamber of Commerce (ICC), Paris, in accordance with its rules. 13.4. The basic principles of the decision by the court of arbitration shall be the purpose and terms and conditions of the contract concluded between the parties as to the goods and services supplied, including all additional agreements as to their execution. This will be augmented by the substantive law of the Federal Republic of Germany. The commercial law of the UN will be excluded from the arbitration process. 13.5. In the event of it being impossible for an objective arbitration procedure to be carried out in accordance with clause 13.4, or for the arbitrators’ decision to be implemented, either party may bring an action before an appropriately responsible ordinary court of law. In this connection, German law will apply in so far as this is permissible and applicable.

Even if certain terms and conditions are lacking or individual points are ineffective, the other parts of this contract shall remain legally valid. The parties to the contract undertake, in such a case, to agree such adjustments in place of the missing or ineffective conditions which will correspond to the meaning and economic purpose of the contract in a permissible way.

These conditions apply to orders placed by the purchaser with the supplier for installation, commissioning, maintenance, repair and similar services (hereinafter referred to in general as services). These conditions apply to all orders placed with the supplier by the purchaser. Within the limits laid down by law, and in so far as nothing in the individual clauses is agreed between the parties to the contract at variance therewith, these general conditions take precedence over all other conditions. In order to be effective, any conditions to the contrary on the part of the purchaser, together with amendments, additions or subsidiary agreements, require the written acknowledgement of the supplier. Even other agreements between the parties to the contract will only be valid in written form. Otherwise than as stated above, the purchaser recognizes the following General Terms and Conditions of the supplier, in their entirety, with the placement of his order or acceptance of the service.

Unless otherwise agreed, the purchaser will be granted the non exclusive right of use to all the drawings and technical documents transferred pursuant to the contract. The aforesaid drawings and documents are not to be made accessible to third parties by the purchaser without the agreement of the supplier.

3.1. The supplier will do everything within his power to carry out the contractual services carefully and on time and to make trained personnel available for the purpose. 3.2. The supplier’s personnel are not under any obligation to carry out work outside the contractual obligations without the prior agreement of the supplier. If the supplier does give his agreement in such a case, the work will be charged for in accordance with clause 6.1.

4.1. The purchaser is required to support the supplier’s personnel in any way necessary for the execution of the contractual services, at his own expense. 4.2. He is required to take any special measures necessary to protect personnel and property at the place of installation. He must inform the installation supervisor of any special safety regulations in existence, in so far as these are of importance to the installation personnel. He will notify the supplier of any infringement of such safety regulations by the installation personnel.

5.1. The purchaser is required to do everything necessary on his part to enable the work to be started on time and to be completed without hindrance or interruption. Unless otherwise contractually agreed, the purchaser is required to undertake the following, at his own expense in particular: a) The provision of suitably trained personnel and assistants in the numbers and with the qualifications necessary for the installation, for the required period of time. These personnel will be required to carry out the instructions of the installation supervisor. The supplier accepts no liability for these personnel. If they cause any defects or damage as a consequence of instructions given by the installation supervisor, sections 10 and 11 will apply. b) Completion of all excavations, construction work, foundations and scaffolding, including the procurement of the necessary building materials. c) The provision of the requisite machines, equipment and heavy tools (e.g. lifting gear, transporting equipment, compressors, welding sets) and the requisite supplies and fuels, welding, cutting and inert gases (welding consumables). d) The provision of heating, lighting, electricity, compressed air and water, including the necessary connections thereto. e) The provision of suitable dry, lockable rooms for the storage of the tools used by the installation personnel. f) Transfer of the various component parts to the place of installation, the protection of the place of installation and materials from damage of any kind, and cleaning of the place of installation. g) The provision of suitable, thief proof rest rooms and working rooms (with heating, lighting, telephone, fax machine, washing facilities, sanitary facilities and first aid for the installation personnel). h) The provision of materials and the undertaking of all other negotiations required to commission the object of the delivery and to carry out any contractual or other trials required. 5.2. The preliminary work and technical assistance provided by the purchaser must guarantee that the installation work can proceed immediately after the arrival of the installation personnel and with no delay up to the handover to the purchaser or the time when the acceptance procedure can be carried out. In so far as special plans or instructions are required to be followed on behalf of the supplier, these will be made available to the purchaser in good time. 5.3. If the purchaser fails to meet his obligations, the supplier will be entitled, though not obliged, after due notice, to undertake the negotiations incumbent upon the purchaser, in his place and at his expense. Furthermore, the rights and claims of the supplier to which he is entitled by law and arising out of these general conditions will remain unaffected thereby.

6.1. The installation will be charged in accordance with the amount of time required, at the wage rates and tariffs specified in the quotation, plus any supplementary charges and other secondary expenditures arising. 6.2. Instead of clause 6.1., a fixed price may be agreed on the basis of the tariffs specified in the quotation. This price will cover the agreed services at the agreed time under the working conditions and other circumstances known to, or designated by, the supplier at the concluding of the contract. 6.3. Additional expenditures over and above the agreement described in clause 6.2., due to circumstances outside the sphere of influence of the supplier, particularly arising out of retrospective changes to the content or scope of the agreed service, or delays caused by the purchaser, are to be borne by the purchaser. Examples of additional expenditures of this nature could be waiting times, essential preservation treatment of materials, restart costs. Invoices will be based on the amount of time spent, in accordance with clause 6.1., as per the wage rates and tariffs specified in the quotation, plus any supplementary charges and other secondary costs arising.

7.1. Information provided as to the length of time required for the installation and, in particular, the dates thereof should only be regarded as guidelines unless the dates have been agreed expressly and in writing. The installation period will be deemed to have been complied with if the service has been completed to a sufficient extent, by the time the period expires, for the installation to be ready for handover to, or acceptance by, the purchaser, in the event that a trial is to be undertaken as provided for in the contract. 7.2. If the installation is delayed by activities in the nature of industrial disputes, particularly strikes and lockouts, or by circumstances arising for which the supplier is not to blame or over which he has no control, the installation period will be reasonably extended if such hindrances have a serious effect on the completion of the work; this will also apply if such circumstances arise after the supplier has fallen behind with the work. 7.3. If the purchaser incurs a loss which can be proved to have resulted from a culpable delay on the part of the supplier, he may demand compensation for the delay, in so far as this has been agreed in writing, without prejudice to any other claims; compensation will amount to 0.5% for each full week of the delay, or a maximum of 5%, of the installation price for that part of the plant still to be installed by the supplier which, due to the delay, cannot be utilized at the required time.

8.1. The supplier will take into his care any objects and materials provided by the purchaser in accordance with the conditions laid down in a separate agreement relating thereto. Unless otherwise agreed, the risk of the chance destruction or deterioration of these objects and materials will remain that of the purchaser. This also applies to such objects as the purchaser has acquired from the supplier. 8.2. The risk of the chance destruction or deterioration of the installation, either as a whole or as separate parts thereof, will pass to the purchaser as soon as the supplier indicates their completion to the purchaser. (If a trial operation or acceptance procedure is agreed, the risk will pass to the purchaser on the successful completion of the trial operation or acceptance procedure). 8.3. If the installation, the trial operation or the acceptance procedure is interrupted or delayed for reasons for which the supplier is not responsible, the risk of chance destruction or deterioration of the installation so far completed will pass to the purchaser for the period of the interruption or delay. 8.4. If the purchaser puts the installation completed by the supplier, either as a whole or as separate parts thereof, into operational use, the risk shall be deemed to have been transferred even if an agreed trial operation or acceptance procedure has not, or not yet, been carried out.

9.1. An acceptance procedure will take place in such cases as have been agreed in writing. As soon as the supplier notifies the purchaser of readiness for acceptance, the procedure is to be carried out without delay. It must not be refused on account of any deficiencies which either do not impair the operational capability of the installation or do so only to an insignificant extent. 9.2. If the installation proves not to comply with the contract, the supplier will be under an obligation to rectify any deficiencies at his own expense unless the defect was caused, wholly or to a significant extent, by the purchaser. 9.3. If the acceptance procedure does not take place within four weeks from the notification of readiness for acceptance, for reasons for which the supplier is not responsible, acceptance shall be deemed to have been completed on the expiry of this period. 9.4. Acceptance shall, in any case, be deemed to have taken place as soon as the purchaser utilizes, or could utilize, the object resulting from the services rendered. 9.5. The costs of the acceptance procedure are to be borne by the purchaser. 9.6. The liability of the supplier for identifiable defects ceases with the acceptance, in so far as the purchaser has not reserved the right to enforce liability for a specific defect.

10.1. The supplier guarantees that the services have been correctly completed for a period of six months from the transfer of risk or, if agreed, from the acceptance procedure specified under section 9. 10.2. During the guarantee period, any defects in the installation discovered and notified will be rectified by repair or replacement, at the supplier’s discretion, free of charge. The right to enforce liability for a defect will lapse six months from the time of its notification (subject to this being made promptly) or on the expiry of the agreed guarantee period at the earliest. The guarantee period for repair work or the provision of new services will again be six months; if applicable, however, this will be extended until the expiry of a guarantee period originally extended to cover the service as a whole. The period of liability for defects will be extended by the periods of operating stoppages caused by the repair work. 10.3. The guarantee does not cover the quality, suitability or use of objects and materials supplied by the purchaser, or services otherwise provided by him, or to any operations performed by the supplier’s personnel not forming part of the contract, i.e. undertaken without his agreement. The supplier gives no guarantee on defective work carried out by personnel provided by the purchaser in accordance with the contract, if the supplier proves that the damage or defect is not attributable to imperfect instructions given by him or to an infringement of his supervisory duties. The guarantee will also not extend to faults in the installation or use of the plant caused by the purchaser or a third party without the involvement of the supplier. Moreover, natural wear is excluded from the guarantee, together with any damage occurring after the transfer of risk as a consequence of faulty or negligent treatment, the imposition of excessive stress, the use of unsuitable operating consumables or replacement materials or aggressive cleaning agents, deficient construction work, unsuitable foundations, or electrical, chemical, electrochemical or other influences which were not provided for or could not have been foreseen within the terms of the contract. 10.4. If the supplier allows a reasonable extension of time, accorded to him to rectify the defect, to elapse to no avail through his own fault, the purchaser will be entitled to an abatement. The purchaser’s entitlement will also apply in other cases involving a failure to rectify a defect.

If, though the fault of the supplier, the object of the installation cannot be used by the purchaser in accordance with the terms of the contract as a consequence of omissions or errors in proposals and advice given before or after the concluding of the contract, or any other secondary contractual obligations (in particular a lack of instructions for operating and maintaining the object of the installation), the terms and conditions laid down in section 10 and clauses 11.2 to 11.4 will apply, to the exclusion of any further claims on the part of the purchaser. 11.2. The purchaser may not make any claims for compensation enforceable against the supplier over and above the claims to which he is entitled under these terms and conditions, particularly claims for compensation for damages, even not for non contractual conduct, or any other rights concerning any shortcomings whatsoever relating to the installation, irrespective of whichever legal reason he invokes. 11.3. The exemption from liability given in the above clause 2 does not apply in a case of intent or gross negligence. However, the supplier will only be liable for intent or gross negligence by non supervisory personnel if they infringe an important contractual obligation. In both cases, however, compensation for pecuniary losses, i.e. from production stoppages, production shortages or lost profit, will be limited, through the general principles of good faith, to cases where there is a disproportionate difference between the amount of the installation price and the amount of the damages. 11.4. The exemption from liability will also not apply (on the same basis as clause 3) if certain essential characteristics are lacking which have been expressly assured in writing, if the objective of the assurance was actually to protect the purchaser against damages not arising from the object of the installation itself.

12.1. The supplier may withdraw from the contract, wholly or in part, if the purchaser does not undertake acceptance in due time, enters a condition verging on insolvency, particularly in the event of insolvency or bankruptcy proceedings being instituted against him, or if circumstances arise within the meaning of clause 12.2 on the part of the purchaser or supplier which, in spite of a reasonable extension of time, make fulfillment impossible either wholly or in part. 12.2. The purchaser may withdraw from the contract if it finally becomes impossible for the supplier to carry out the entire undertaking before the transfer of risk. The same will apply in the event of the insolvency of the supplier. 12.3. The purchaser may also withdraw from the contract, after prior notice, if an action to rectify a defect finally proves unsuccessful and the installation can be proved to be of no interest to the purchaser in spite of any abatement allowed in accordance with clause 10.4.

13.1. None of the taxes levied on goods and services in the country of manufacture or, if applicable, taxes, duties and levies payable in the country of the purchaser or place of use will be included in the invoice price of the goods and services provided by the supplier. These will be charged additionally on the invoice. 13.2. In so far as the supplier or his installers are made responsible for duties and taxes in the country of the purchaser or place of use, the purchaser is under an obligation to undertake payment of the set amounts or, in so far as these have already been paid by the supplier, to reimburse them accordingly.

14.1. This contract is to be construed, and the duties of the parties of the contract undertaken, in a manner required by good faith and with due regard for customary practice. 14.2. If differences or disputes arise out of the contract or agreements relating to its execution, both parties are to endeavor initially to settle them in an amicable way. 14.3. If attempts to reach a settlement fail, either party may apply for a court of arbitration to be nominated to decide the dispute. In the case of domestic (i.e. German) businesses, application will be made through the President of the Chamber of Industry and Commerce, Frankfurt/Main. If the supplier and purchaser are based in different countries, the decision will be taken by the Court of Arbitration of the International Chamber of Commerce (ICC), Paris, in accordance with its rules. 14.4. The basic principles of the decision by the court of arbitration shall be the purpose and terms and conditions of the contract concluded between the parties as to the goods and services supplied, including all additional agreements as to their execution. This will be augmented by the substantive law of the Federal Republic of Germany. The commercial law of the UN will be excluded from the arbitration process. 14.5. In the event of it being impossible for an objective arbitration procedure to be carried out in accordance with clause 3,4 or for the arbitrators’ decision to be implemented, either party may bring an action before an appropriately responsible ordinary court of law. In this connection, German law will apply in so far as this is permissible and applicable.

Even if certain terms and conditions are lacking or individual points are ineffective, the other parts of this contract shall remain legally valid. The parties to the contract undertake, in such a case, to agree such adjustments in place of the missing or ineffective conditions which will correspond to the meaning and economic purpose of the contract in a permissible way.