GENERAL TERMS AND CONDITIONS
1. RANGE OF VALIDITY
1.1 Delta Test (in the following called „supplier”) will exclusively become active for its customer on the basis of these general terms and conditions. They are the basis of each offer, each acceptance and each order acknowledgement of the supplier. With placement of the order they become part of the contract with their entire contents. They are valid either for all deliverables and performances that the supplier produces for his customer before conclusion of a possible contract as well as for all future deliverables and performances of the supplier, even if their inclusion will not be expressively agreed upon again.
1.2 Eventual deviations and exceptions from these general terms and conditions or general terms and conditions of the customer are only valid if the supplier has expressively confirmed them in writing; they are only valid for the concretely confirmed single order.
1.3 If not expressively determined otherwise, the prices according to the current supplier’s price list are valid at the time of inspection performance.
2.1 All offers of the supplier are to the whole extent without engagement. The documents 2.1 All offers of the supplier are to the ful extent without engagement. The documents belonging to an offer, as there are illustrations, drawings, other technical presentations and instructions are only approximate as far as they are not expressively named or confirmed as binding.
2.2 Property and all copyrights concerning the offer documents are subject to the supplier. The customer must not render them accessible to third persons without the previous agreement of the supplier.
3. SCOPE OF PERFORMANCE
3.1 The supplier fulfils his performances according to the principal’s specified demands and the generally recognized regulations of the technique by respecting the given security prescriptions and the quality standards according to his certificates according to ISO 9001, SCC, OHSAS 18001 and KTA1401.
3.2 The objects to be tested and layed out ready for testing will principally neither be treated nor modified by the supplier. Eventually necessary treatments or modifications will be executed by the principal at his own costs and risks, if there is expressively not agreed upon something else in an individual case. A liability of the supplier for a damage or deterioration of the object to be tested is excluded.
3.3 The control range will be prepared by the supplier – if occasion arises – together with the principal. An eventual blocking and marking of public traffic areas according to the road traffic law is not part of the task range of the supplier.
3.4 The supplier has the right to pass the order or single parts of it to sub-contractors or other assistants for fulfilment unless it is excluded by an explicit written agreement with the principal.
3.5 Statements concerning the test results are only binding as far as they are included in the written test report of the supplier. For eventual measures that the principal undertakes because of the test results, the latter is exclusively responsible himself.
4. OBLIGATION FOR CO-OPERATION
4.1 The principal will enable the suppliers to have free and safe access to the objects to be tested and secure it for the duration of the tests. Necessary access and working approvals will be procured in time before the beginning of the tests for the supplier on behalf of the principal.
4.2 If particular official security prescriptions are valid at the place of performance or other special regulations being of importance, the principal will point out this in time before the beginning of the tests to the supplier. The principal will, in addition to that, take care that the concrete local area in which the supplier will perform the test corresponds to the particular security prescriptions.
4.3 The principal is obliged to co-operate as far as this is necessary for the orderly performance by the supplier. He will put at the supplier’s disposal – to the necessary extent – electric current, water, scaffoldings, ladders, steps, crane works, other lifting gears and others and cares for a sufficient lighting at the place of performance. As far as there has nothing else been agreed upon, the principal has the exclusive responsibility for the accomplishment of the duties arising from the prescriptions for the prevention of accidents for scaffoldings and for line trenches (BGV C22).
4.4 For the safe storage of tools the principal will put at the disposal – free of charge – lockable rooms and for the supplier’s testing personnel suitable working and recreation rooms including acceptable sanitary installations as well as special protection clothes and protection devices unless they are not of common use for the supplier’s branch.
4.5 There will be established regular working reports or hour schedules concerning the performances and working times. They are to be certified by the principal or his delegate.
4.6 If the principal does not fulfil one of his co-operation duties, also after an explicit written demand indicating an adequate deadline, the supplier has the right to stop the works, to cancel the contract and to ask for an adequate compensation.
4.7 Should material inspections take place in the supplier’s workshops, the parts to be inspected are to be delivered free of charge and risk to the supplier and are to be collected again after the inspection. Shipments back to the principal after inspection will be carried out at the principal’s costs and risk. The closing of a transport insurance against transport damages and other risks will only be made upon explicit wish and at the principal’s costs. With handing over or shipment to the principal, the risk is passed on to him, at the latest, however, one week after the information from the supplier that the inspection has been finished or that the parts are ready for shipment.
4.8 If an official acceptance of the supplier’s performance is agreed upon or necessary because of other reasons, or if an acceptance is required, the principal has to carry out the acceptance procedure after completion within a delay being legally adequate and determined by the supplier. Otherwise the performance shall be deemed to be accepted after deadline.
4.9 The securing of sensors and semi-conductors (EDP or control electronic) as well as other objects and installations in the surroundings of the objects to be inspected that react to ionizing radiation is part of the tasks and responsibility of the principal; it is not part of the supplier’s obligations proceeding from the regulations of radiation protection and X-rays.
5. DATES AND DELAY IN EXECUTION
5.1 Information about the duration and termination of the inspections are regularly determined and are based on a normal working procedure and are therefore only approximate values, unless the supplier has described the duration of the inspection explicitly in writing. Beginning, duration and termination can be deferred by unforeseen events and circumstances beyond the range of the supplier’s influence.
5.2 In case of force majeure, fire, flooding, natural catastrophes, warlike or terroristic force, measures of laboratory fights, official interferences, obstacles on transport ways as well as in case of other circumstances beyond the supplier’s range of influence like trouble in the management and difficulties with the provision of material and equipment the supplier has the right to postpone the date of the inspection’s termination for the duration of the encumbrance and an adequate phase of restart to the end or to withdraw totally or partially from the contract. A withdrawal declared in that way does not entitle the principal to claim for compensation.
5.3 The supplier only falls into delay when the principal reminds him after beginning of the due date in writing. If the supplier is behind schedule the principal is entitled to set him an adequate additional respite. If the supplier does not even render his service within the additional respite, the principal can withdraw from the contract.
5.4 Costs arising for the supplier because of a delay the principal is responsible for are taken over by the principal.
6. RESERVATION OF PROPERTY
6.1 Inspection services, documentation, films as well as other data media and supplies remain until the complete fulfilment of all payment claims of the supplier against the principal out of the existing business relation the supplier’s property.
6.2 In case of a breach of the principal’s duties, especially with payment delay, the supplier is at any time entitled to take again the inspection documentation and other supplies and services or may claim for their restitution. The enforcement of these rights by the supplier does not pass for a withdrawal from the contract as long as this is not explicitly declared by him in writing.
6.3 If objects of the supply being concerned by the reservation of property of behalf of the supplier are mixed inseparably with other objects not belonging to the supplier, the supplier acquires the joint ownership of the new object in the ratio of the supply object’s value to the other inseparably mixed objects. The principal keeps the joint ownership safe for the supplier.
6.4 The principal may only sell the documentation having been put at his disposal by the supplier and other suppliers and services within the scope of an orderly course of business when he is not in default of payment towards the supplier. By the way it is valid: In case that the service towards the supplier has not already been paid completely at the point of time of the sub-sale to a third person, the principal cedes all claims against the third person from the sub-sale (including value added tax) amounting the payment in arrears to the supplier accepting this, independently from the case if the objects to be supplied will be sold without or after treatment. Upon demand of the supplier the principal has to indicate the sale to the third person and to give all necessary information for the collection and to hand over all documents.
6.5 The principal is not at all entitled to other orders like security conveyance, mortgagings or others. In case of distresses as well as confiscation or other orders by third persons the principal has to inform the supplier without delay and to give him all information and documents that are necessary for the protection of his rights.
7. PRICES, PAYMANTS AND DELAY IN PAYMENT
7.1 For the suppliers and services the principal will pay the prices agreed upon to the supplier. If the contract partners have not agreed upon explicit prices, the settlement will be done on the basis of the current product and price list at the point of time of the service and/or supply. The product and price list can at any time be changed adequately by the supplier according to his own free decision and with a future effect.
7.2 All prices indicated by the supplier are net prices and are to be understood with the addition of the legal purchase tax as well as eventual travelling and shipment costs.
7.3 All payments fall due upon receipt of the invoice or other requests for payment. They have to be made at the latest until the date of payment agreed upon, or rather, within the period of time agreed upon; in this case the point of time of the receipt of payment is determining. For the beginning of the period of payment the respective date of the invoice or request for payment is determining. If no explicit date of payment is mentioned and no explicit period ot time determined, the respective invoice has to be paid within 14 days after the date of the invoice or the request for payment without any deduction. If the payment does not reach the supplier within the period for payment, or rather, 14 days upon the date of the invoice or the request for payment, the principal will get in default without any further explanation of the supplier.
7.4 In case of orders with a period of time for the performance of more than one month the supplier is entitled to issue partial invoices regarding the already produced suppliers and services.
7.5 If terms of payment are not followed by the principal, the supplier has the right to ask for an immediate payment for all existing claims and make outstanding supplies and services dependent from the payment of outstanding debts and an adequate advance payment for the service to be still rendered.
7.6 If the termination of the supplier’s performance becomes impossible because of a circumstance that he is not responsible for, he can ask for a part of the payment agreed upon for the work done as well as a replacement of the expenses not being included in the reimbursement.
7.7 The principal is only entitled to assert his rights of retention and for settling of accounts with counter-claims, if these rights or claims have been legally stated or accepted by the supplier or not been denied.
7.8 The principal owes interest payable on arrears amounting 8 per cent points above the basic rate of interest according to § 247 BGB (Bürgerliches Gesetzbuch) to the supplier for the duration of the delay in payment.
8. Liability for Defects and Complaint
8.1 Perceivable defects as well as the lack of eventually assured characteristics have to be raised towards the supplier in writing at once, at the latest within a preclusive time limit of 14 days upon receipt of the supply or service, especially the inspection report, the certificate of acceptance or similar. After expiration of the time for claims perceivable defects and the lack of assured characteristics can no longer be raised.
8.2 With each complaint the supplier has the unlimited right to view and inspect the objection. Within the scope of this inspection there has to be put on demand at the supplier’s disposal eventual reports of the company, records etc. and give useful information.
8.3 In case of a defect the supplier is obligated to remedy it by a removal of the defect free of charge within an adequate period of time at his choice or as a substitute by a supply or service of a new thing free of defects (subsequent performance). If the subsequent performance only possible with disproportionate costs, the supplier may refuse it.
8.4 If there does not take place a subsequent performance within an adequate period of time determined by the principal or if it fails or if it is outrageous for the principal, the principal can at his choice withdraw from the respective contract by fulfilling the legal preconditions, reduce the price or, following the further legal preconditions of § 281 of the German Civil Code, claim for compensation of damage or in some cases replacement of wasted expenses according to application of the following subclause 10. If the principal wants to claim for compensation of damage instead of the service or carry out the correction himself, a failure of the subsequent improvement is only given after the second unsuccessful trial. In case of trivial defects or violations of duty the principal has no right to withdraw from the contract.
8.5 The supplier does not take over any guarantee for damage that occur because of unsuitable or improper use of the deliveries and services of the supplier, if the supplier is not responsible for the damage. A liability for defects is excluded, if and as far as a defect is based on circumstances that the principal or a third person is responsible for.
8.6 Claims regarding defects against the supplier become statute-barred after 1 year upon receipt of the concerning delivery or service. In cases of the following subclause 10.2 the legal period of limitation is applicable.
9. NO TAKE-OVER OF GUARANTEE
Eventual indications of the supplier that are included in leaflets, publicity, advertisements, documentations, offers and similar scripts only represent descriptions and do not contain any guarantee of the condition of his supplies and services. Each guarantee requires for its effectiveness in every particular case an explicit agreement in writing or an explicit confirmation in writing on behalf of the supplier. Sub-clause 3.1 remains unaffected.
10. LIMITATION OF LIABILITY
10.1 The supplier is on principle only liable for intent and bad carelessness according to instruction and subject to the following provisions. A right for compensation instead of or in addition to the performance and for replacement of wasted expenses, whatever the legal reason might be (for example in case of non-performance, faulty performance, impossibility, legal defects, breach of obligations before or with conclusion of the contract, unauthorized action etc.) is limited as follows:
(i) The principal is liable for every claim only in a limited way regarding the foreseeable typically occurring defect for the culpable breach of obligations of the relation of liability, at a maximum, however, only to the amount of the contract value agreed upon for the concerning supply or service.
(ii) The supplier is not liable for the slightly careless breach non-essential obligations of the relation of liability.
(iii) As far as an insurance concluded by the principal grants coverage for the damage, the supplier is only liable towards the principal for the disadvantages (for example self-participation) connected with the recourse of his insurance.
The liability for defects by the object of supply or service for other legal properties of the principal (for example defects on other things of the principal) is totally excluded.
10.2 The limitations of liability in sub-clause 10.1 are not applicable in cases of obligatory legal liability (especially according to the product liability law) as well as in case of a take-over of a quality guarantee or if the supplier has treacherously concealed a defect or in case of culpably caused injuries of life, body or health.
10.3 The supplier is only liable for direct defects on the object of the supply or service but, however, not for incidental, indirect or consequential defects as for example loss of use, lost profit or other pure pecuniary damage; unless there is a case of sub-clause 10.2 or the damage is due to a breach of a fundamental contract obligation. In case of the breach of a fundamental contract obligation the liability is also subject to the restrictions of the aforementioned sub-clause 10.1 (i) to (iii).
10.4 Claims for compensation against the supplier instead of or in addition to the service because of delay in delivery or service are limited to 5 % of the order value. A further liability because of delays is excluded. The aforementioned restrictions do not apply for cases of the sub-clause 10.2 above.
10.5 For all eventual defects from and in connection with a nuclear incident in the sense of Article 1 (a) (i) of the convention regarding the liability towards third parties on the territory of nuclear power (Paris Convention) any liability of the supplier, no matter of what legal reason, is excluded.
10.6 For damage of third parties the supplier is not liable in any case. As far as a liability of the supplier towards third parties should exist because of special agreements or compelling legal prescriptions, the limitations of liability appropriately apply according to sub-clauses 10.1, 10.3, 10.4 and 10.5.
10.7 As far as the supplier’s liability is excluded or limited, this also applies for the eventual personal liability of his legal represe11.1 The contract partners have under certain circumstances within the limits of the performance of the order access to information incl. Know-how and technical procedures of the other contract partner (“confidential information”). These are to be treated confidentially by the contract parties, their staff and other employees. Information of a contract party – that (i) are already or will be accessible to the public without an action or an omission of the other contract party or if these (ii) were in the legal possession of the other contract party before they were revealed or that the other contatives, staff and other employees.
11 CONFIDENTIAL INFORMATION AND COPYRIGHTS
11.1 The contract partners have under certain circumstances within the limits of the performance of the order access to information incl. Know-how and technical procedures of the other contract partner (“confidential information”). These are to be treated confidentially by the contract parties, their staff and other employees. Information of a contract party – that (i) are already or will be accessible to the public without an action or an omission of the other contract party or if these (ii) were in the legal possession of the other contract party before they were revealed or that the other contract party has neither directly or indirectly received from the revealing contract party or that (iii) were independently developed by the other contract party – are not considered as confidential information in the sense of this regulation.
11.2 The contract parties only have the right to pass on confidential information to third persons after the contract partner’s previous agreement in writing. The supplier has, however, the right to use the principal’s name – if occasion arises – for publicity measures or within the frame of information regarding investors and analysts.
11.3 Confidential information are to be dealt with in confidence and kept secret during the performance of the order as well as 2 years after termination. A confidentiality does, however, not exist as far as a legal obligation for disclosure or both contract parties agree upon an exception.
11.4 The supplier is entitled to take copies of the documents having been given to him for his information in connection with the performance of the order for his own files.
11.5 The supplier expressively reserves his copyrights for the expertises made by him, inspection results, calculations and similar documents.
12. OTHER GENERAL REGULATIONS
12.1 Supplements, additions or changes of contracts as well as eventual subsidiary agreements or promises must be done in writing in order to be realized. This also applies to an eventual renouncement of the necessity of the written form.
12.2 The legal relationships between the contract partners are exclusively subject to the German law.
12.3 The place of jurisdiction for all disputes arising from or in connection with the order shall be the Contractor's place of business, unless the contracting parties have expressly agreed otherwise.
12.4 If any provision or part of the agreements between the contracting parties is invalid or unenforceable, the remaining provisions of the agreement shall remain in full force and effect. The contracting parties undertake to replace the invalid or unenforceable provision by a valid or enforceable provision which comes as close as possible to the economic purpose of the invalid or unenforceable provision. The same shall apply if the agreements contain a loophole.