General Terms and Conditions of ONgineer GmbH ("GT&C")
Version: 01 August 2020
1. General, Scope
The following GT&C shall apply only to companies in accordance with § 14 BGB (German Civil Code). They shall apply exclusively and with final effect, even if not agreed upon separately in an individual case. In case of on-going business relationships, this shall apply also in the event of a conclusion of a contract by fax or phone or another, in particular also electronic form.
Contradicting conditions or conditions of CLIENT that deviate from these GT&C are expressly being rejected. ONGINEER does not accept them, unless ONGINEER has expressly agreed to them in writing. Any differing and deviating General Terms & Conditions of CLIENT are herewith rejected. They shall be considered waived even if they were not expressly rejected once again upon conclusion of the contract or at a later point in time.
The General Terms & Conditions shall apply also if ONGINEER unconditionally accepts the service of CLIENT while being aware of contradicting conditions or conditions of CLIENT that differ from the GT&C of ONGINEER. A fulfilment of contract by ONGINEER shall not replace the express written confirmation of deviating conditions.
The employees of ONGINEER shall not be authorised to negotiate the applicability of GT&C other than these verbally or in writing, or in another way. Modifications of these GT&C or of other contractual contents shall be subject to approval by the executive management of ONGINEER.
Ancillary agreements, modifications, amendments, or addenda to the contract shall require the written form; they, too, shall be subject to these GT&C.
Insofar as declaration must be made in writing in accordance with these GT&C, this shall also refer to text form in addition to the written form.
2. Quotation Documents, Quote
ONGINEER develops products specially adjusted to the needs of the respective ordering party. CLIENT shall check the respective DEVELOPMENT PROJECT independently and by themselves based on the quote of ONGINEER, in particular as to whether it conforms to their requirements and their needs.
Upon a CLIENT's request, ONGINEER shall be at liberty to check whether ONGINEER will furnish a quote with respect to the desired piece of work or the desired service.
CLIENT shall point out to ONGINEER already with the order the regulations and standards relating to the carrying out of the delivery, the operation, as well as to the health and safety of personnel in the country of destination.
Subsequently, ONGINEER shall be at liberty to furnish a respective quote for a design and technical solution including a SCHEDULE and MILESTONE PLAN. The prices stated shall apply subject to the condition that the order data on which the quote tendered was based remain unchanged. With ONservice, the quote shall be based on the technical data specified by CLIENT regarding the test item referred to in the quote as well as the scope of measurements described therein. In terms of calculation, ONGINEER assumes that the test item can be easily commissioned without specialised knowledge.
If CLIENT accepts the quote, the design and technical solution, including the SCHEDULE and MILESTONE PLAN, shall be accepted therewith. CLIENT shall furthermore be required to countersign the drawings and the SCHEDULE and MILESTONE PLAN, also when changes result during production, commissioning, and manufacturing on-site. The changes suggested in writing by ONGINEER shall require countersigning by CLIENT in order to be considered approved and agreed upon. If CLIENT does not respond to the changes in the SCHEDULE and MILESTONE PLAN and technical and design solution suggested by ONGINEER, these shall be considered approved and agreed upon after the expiration of 14 days after they were received by CLIENT. This shall, in particular, also apply to any adjustments to the price suggested by ONGINEER associated with the change.
If the order is to be qualified as a quote in accordance with § 145 BGB, ONGINEER shall have the right to accept it within four weeks. The contract shall only become effective upon receipt of the written order confirmation by ONGINEER. Until the written order confirmation, all quotes shall be subject to change and non-binding. In case of immediate execution of the order, the delivery slip or the commercial invoice shall also serve as order confirmation.
If CLIENT exclusively orders a service from ONGINEER, the PARTNERS shall be at liberty, independent of the right to termination without notice to also terminate with a period of notice of 14 days to the end of the month.
3. Terms and Conditions of Payment, Prices
Unless something else is specified in the order confirmation, the prices of ONGINEER shall apply "ex works", plus applicable VAT on the day of invoicing. For services rendered in the context of ONservice, all costs for measuring equipment and set-up times required to perform measurements as well as the assignment of the experts required to perform measurements shall be included in the prices.
If the delivery or setup or installation at a location other than the headquarters of ONGINEER is agreed upon, CLIENT shall, in addition to the agreed upon remuneration, bear all required ancillary costs such as travel costs, transport costs, including the costs of the packaging typically used by ONGINEER or the packaging requested by CLIENT, the costs of transporting tools back and forth, as well per diems.
If a service is agreed upon to be provided at a location other than the headquarters of ONGINEER, CLIENT shall also bear all required ancillary costs such as travel costs, food and lodging.
The prices shall be applicable, respectively, only to the contractually agreed upon quantity and design. If CLIENT requests changes that require more effort than what the contract is based on, the right to a reasonable adjustment of the prices shall remain reserved.
ONGINEER reserves the right, to increase the prices by the amount of the cost increases caused thereby if, subsequent to conclusion of the contract, the costs increase unforeseeably, in particular due to bargaining agreements, increases in the price of materials, increases in the price of raw materials, or increases in energy costs. In this case, the price changes shall be possible only in the context and for the compensation of the aforementioned price and cost increases.
The statutory value-added tax is not included in the prices; it will be specified separately on the invoice in the statutory amount applicable on the day the invoice is issued.
The deduction of a discount shall require a special written agreement. If a discount agreement exists, the following shall apply: Partial payments shall not be eligible for a discount.
Unless specified differently in the order confirmation, the price shall be due net (without deduction) free of transaction charges and shall be payable to our payment office, and be payable immediately. If CLIENT is in default, ONGINEER shall be entitled to demanding interest on arrears in the amount of 8 percentage points above the statutory base interest rate per year. If ONGINEER is able to provide proof of higher damages due to this default, ONGINEER shall be entitled to claim those. CLIENT, however, shall have the right to prove that ONGINEER did not incur damages or did incur significantly lower damages as a result of the default.
CLIENT shall be entitled to offsetting only if its counterclaims have been judicially determined, are uncontested, or have been acknowledged by ONGINEER, or if they are in a reciprocal relationship (synallagma) regarding the principal claim. CLIENT shall only be entitled to a right of retention for counterclaims that have been determined, uncontested, acknowledged by ONGINEER, or are in a reciprocal relationship (synallagma) regarding the principal claim. Furthermore, client shall only be entitled to exercising a right of retention to the extent that its counterclaim is based on the same contractual relationship. Credit memos are expressly granted for the purpose of offsetting. There shall be no claim to the payment outright.
In case of doubt regarding CLIENT's ability to pay, ONGINEER reserves the right to demand advance payments or that securities be provided. If an attachment could not be enforced at CLIENT or if CLIENT enters into financial collapse, ONGINEER shall be entitled to withdraw from the contract, subject to a charge for the expenses incurred. Under the same prerequisites, ONGINEER shall be entitled, subsequent to delivery to CLIENT, to inspect client's warehouse and to provisionally seize goods that are subject to reservation of title or collateral ownership without consideration of contradicting earlier agreements until they are paid for in cash or a security deposit is provided. Transport and storage costs shall be borne by CLIENT.
To the extent that ONGINEER is entitled to perform partial deliveries and partial services, these shall be remunerated upon provision of the respective partial deliveries/services.
4. Delivery Schedule and Execution of Delivery
Unless the order confirmation expressly specifies something else, the DEADLINES / MILESTONES specified shall be non-binding information, for adherence to which no warranty is given.
The delivery period shall start with the day of the final order confirmation but no sooner than the complete clarification of any and all details of execution, in particular no sooner than receipt of any documents to be delivered by CLIENT as well as receipt of an agreed upon down-payment due at the conclusion of the contract. Additionally, adherence to the delivery period shall presuppose fulfilment of the contractual obligations, in particular of any and all obligations to participate such as the provision of documents by, materials to be provided by, permits/approvals, and releases to be obtained by client.
The agreed upon delivery period shall be extended, independent of the rights arising from a default, by the period during which CLIENT is in default with its obligations from this or another contract.
The delivery period shall be considered maintained if the TARGET PRODUCT has departed from the factory upon its expiration or if, in case of pickup by the CLIENT, the goods are ready for shipping and this is communicated to CLIENT.
CLIENT cannot reject partial deliveries unless a partial delivery is not reasonable or was expressly excluded by agreement.
The agreed upon DEADLINES / MILESTONES shall also be considered adhered to upon reporting of readiness for shipment if the TARGET PRODUCT is not delivered on time through no fault of ONGINEER and/or if the service could not be provided on time. The delivery deadline shall be reasonably extended in case of measures in the context of labour disputes, in particular strike and lock-outs at its own business as well as in case of labour disputes at third party businesses insofar as ONGINEER is not at fault as regards acceptance, precaution or averting measures, furthermore, in case of occurrence of unforeseeable events such as mobilisation, war, blockade, import and export bans, special statutory regulations or statutory requirements, raw material and fuel shortages, fire or traffic closures, or force majeure, insofar as such hindrances have an impact on the completion on the delivery subject, occur at ONGINEER, an upstream supplier or subcontractor or carrier, and are not attributable to ONGINEER, while liability shall be excluded only for slight negligence. If these conditions exist, ONGINEER shall also be authorised to withdraw from the contract. The delivery period extensions at hand shall also apply if the disruptions occur at a point in time at which ONGINEER is in default.
If delivery, manufacturing, installation, or development is delayed upon CLIENT's request or due to reasons attributable to CLIENT, ONGINEER will bill to CLIENT, starting one month after notification of readiness to perform or readiness for shipments, the costs incurred through the storage and delay, in case of storage at ONGINEER's factory, at least 2 % of the invoice amount for each month started (subject to proof of significantly lower costs). The assertion of additional right from default shall remain unaffected.
Additionally, ONGINEER shall be entitled, subsequent to the setting and unsuccessful elapsing of a reasonable deadline for acceptance, to withdraw from the contract and/or to claim damages.
5. Assembly/installation and setup
In case that an assembly/installation or setup is agreed upon, the following shall apply:
Prior to the start of the setup or assembly/installation, CLIENT shall perform the necessary preliminary work; CLIENT shall, in particular, provide access to electrical and other lines necessary for the assembly/installation or setup, and provide the necessary materials and articles to be provided by client. CLIENT shall ensure that the necessary preliminary work has progressed to the extent that the setup or assembly/installation can be performed as planned.
CLIENT shall provide, on time, at its expense, the commodity articles and consumables for set or assembly/installation, such as protective clothing, scaffoldings, hoists, water and electric power, as well as wiring diagrams and line plans.
CLIENT shall ensure that the technical, constructional, and other prerequisites for the setup and assembly/installation are created on time in accordance with the SCHEDULE and MILESTONE PLAN.
CLIENT shall, at its expense, provide at the assembly/installation and/or setup site sufficiently sized, dry, and lockable storage rooms for the parts, materials, tools, and similar needed for the assembly/installation or setup. CLIENT shall ensure that suitable rooms exist for the assembly/installation personnel that comply with applicable statutory and occupational safety law requirements.
The inspections to be carried out within the scope of ONservice are exclusively based on the work described in the ONGINEER quote. If CLIENT demands additional services, which were not included in the ONGINEER quote, such services are ordered separately and invoiced by ONGINEER.
ONservice includes the measurement of a test item provided by CLIENT. If dangers of any kind can emanate from the test item, ONGINEER must be informed about this in advance in writing. This concerns in particular test items modified for measurement or abnormal conditions caused by the measurement.
ONGINEER also offers consulting services within the scope of ONservice. If CLIENT makes use of ONGINEER's consulting services and orders modifications to the test item on the basis of these consultations, ONGINEER shall be entitled to carry out corresponding work (modifications) on the test item. This constitutes a simple service. Any success, especially a certification requested by CLIENT, shall be neither guaranteed nor owed by ONGINEER.
CLIENT shall bear the costs for the return shipment of the test item and the provided materials. Section 7.2 shall apply.
7. Transfer of risk
Unless the order confirmation specifies otherwise, the delivery shall be agreed upon "ex works". This shall apply also in case of carriage paid delivery and similar transport clauses. If processed goods are returned for reasons not attributable to ONGINEER, CLIENT shall bear any and all risks.
If the setup or assembly/installation at another location is agreed upon, risk shall transfer upon completion of the setup and assembly/installation unless agreed upon otherwise.
At CLIENT's request, ONGINEER shall arrange to insure the delivery against theft, breakage, damage in transit, fire and water damage, as well as other insurable risks; the costs caused by this shall be borne by CLIENT.
A special acceptance of the TARGET PRODUCT shall be agreed upon. This acceptance shall take place at the agreed upon acceptance date at ONGINEER, or, in case of agreement on delivery to and/or the setup and/or assembly/installation at a different location, at the place of destination. If this acceptance is not performed within three days of the acceptance date, the acceptance shall be deemed to have taken place and the TARGET PRODUCT and the services shall be deemed as meeting the contractual requirements and being free from defects.
CLIENT shall not be entitled to reject deliveries due to minor defects.
8. Liability for Defects
The services and deliveries of ONGINEER shall be considered to have met contractual requirements and to have been accepted if CLIENT does not make a complaint, in writing, immediately, but no later than 10 days after receipt. The commissioning by CLIENT shall, in any case, constitute acceptance meeting contractual requirements. Also to be considered as commissioning is, In addition to the sale of the TARGET PRODUCT, any form of treatment or processing as well as the start of any follow-up work for which our service are to be considered preliminary work. Minor, in particular customary variations with respect to quantity, weight, and quality up to 3 % of the target values shall not entitle to a complaint.
CLIENT's claims for shall require that CLIENT inspected the delivery immediately after receipt, to the extent that this is feasible based on the ordinary course of business, and that CLIENT immediately notifies ONGINEER when a defect is found.
A defect in a partial delivery shall not entitle CLIENT to withdraw from the whole contract, unless CLIENT's interest in the whole contract is lost.
If the TARGET PRODUCT does have a defect, ONGINEER shall – at its discretion – be entitled to provide remedy in form of a correction of the defect or to deliver a new defect-free item. In case of a remedy of the defect, ONGINEER shall be required to bear all expenses necessary for the remedy, in particular transport, travel, work and materials costs as well as costs for removal of the defective as well as the installation or the placement of the corrected or delivered defect-free item, if those are not increased by the fact that the TARGET PRODUCT was brought to a location different from the place of fulfilment. ONGINEER can reject subsequent performance if the expenses for remedying the defect are anticipated to exceed the remuneration.
We shall only bear installation and removal costs if the product was integrated or placed in another object according to type and intended use and if we are responsible for the defect which gave rise the claim for subsequent performance.
If the remedy fails, CLIENT shall - at its discretion - have the right to demand withdrawal or reduction.
ONGINEER shall be liable in accordance with the statutory provisions insofar as CLIENT makes claims for damages that are based on intent or gross negligence, including intent or gross negligence of the representatives or vicarious agents of ONGINEER. Unless ONGINEER is accused to be in deliberate breach of contract, the liability for damages shall be limited to the foreseeable, typically occurring damages.
In accordance with the statutory regulations, ONGINEER shall be liable if it culpably violated a material contractual obligation; however, even in this case, the liability for damages shall be limited to the foreseeable, typically occurring damages. A material contractual obligation shall exist if the violation of the obligation refers to an obligation in whose fulfilment CLIENT has trusted and could be expected to trust in.
Liability for culpable injury to life, limb or health shall remain unaffected; this shall also apply to mandatory liability in accordance with the German product liability law (Produkthaftungsgesetz).
To the extent not otherwise specified above, any liability shall be excluded.
The period of limitation for claims for defects shall be 12 months from the date of the transfer of risk.
If a claim for defects turns out to be unjustified, ONGINEER shall be entitled to bill CLIENT for any and all expenses ONGINEER incurred due to this.
Replacements for missing parts shall be provided only if their delivery to ONGINEER was acknowledged or documented by a delivery slip signed by ONGINEER, and if the risk of the missing parts was transferred to ONGINEER. Goods that are delivered to ONGINEER by CLIENT shall be accepted by ONGINEER, subject to reservation of factually correct information regarding their properties. An inspection shall take place during production. A replacement for missing parts that were delivered in larger quantities will be provided only if there is proof of their delivery and if the quantity or the weight was determined jointly during acceptance.
9. Joint and Several Liability
Liability for damages other than that provided in the preceding shall be excluded - regardless of the legal nature of the asserted claim. This shall in particular apply to claims for damages arising from negligence when entering into the contract, damages because of other breaches of obligations, or damages because of tortuous claims for compensation for material damages in accordance with § 823 BGB.
The period of limitation for all claims that are not subject to the period of limitation for defects shall be a preclusion period of 18 months. It shall commence upon obtaining knowledge of the damage and of the person causing the damage.
The above limitation shall also apply, insofar as CLIENT demands compensation for useless expenses instead of compensation for damages.
Insofar as liability for damages against ONGINEER is excluded or limited, this shall also apply with respect to the personal liability for damages of our employees, workers, collaborators, representatives and vicarious agents.
10. Reservation of Title / Collateral Ownership
ONGINEER shall retain the title to the delivered item until receipt of all payments due from the business relationship with CLIENT. To the extent that ONGINEER agrees with CLIENT on payments of the remuneration on the basis of the check or note payment procedure, the retention shall also extend to the redemption of the note from CLIENT, accepted by ONGINEER, and shall not be eliminated by the crediting of the check received. If CLIENT violates its contractual obligations or ends up in default of payment, ONGINEER shall be entitled to withdraw from the contract if CLIENT does not fulfil its obligations after setting of a reasonable deadline or even without a warning if ONGINEER can no longer be reasonably expected to fulfil the contract. ONGINEER may also declare the withdrawal by taking back the TARGET PRODUCT. Subsequent to taking back the TARGET PRODUCT, ONGINEER shall be authorised to its utilisation. The proceeds from utilisation shall be applied to CLIENT's liabilities - minus reasonable costs of utilisation.
Until the final transfer of ownership, CLIENT shall be required to handle the item with care; in particular, CLIENT shall be required to insure them it at its original value at CLIENT's own expense against fire, water and theft. Where maintenance and inspection work is required, CLIENT shall have it performed timely at its own expense.
In case of attachments or other encroachments by third parties, CLIENT shall notify ONGINEER immediately so that ONGINEER can file a lawsuit in accordance with § 771 ZPO [Zivilprozessordnung - German Code of Civil Procedure]. If the third party is not able to reimburse ONGINEER for the judicial and extra-judicial costs of such a lawsuit in accordance with § 771 ZPO, CLIENT shall be liable for any losses incurred.
CLIENT shall be entitled to resell the TARGET PRODUCT in the ordinary course of business; CLIENT shall, however, already now assign to ONGINEER all accounts receivables in the amount of the final invoice amount (incl. VAT) that accrue to CLIENT against purchasers or third parties on resale, and independently of whether the item was resold without or after processing it. CLIENT shall remain authorised to collect this account receivable even after assignment. The authorisation of ONGINEER to collect the account receivable itself shall remain unaffected by this. However, ONGINEER agrees not to collect the accounts receivable as long as CLIENT complies with its payment obligations from the collected proceeds, does not default in payment and, in particular, no petition for the institution of insolvency or composition proceedings is filed or cessations of payment exist. But if this is the case, ONGINEER shall be entitled to demand that CLIENT provide information about assigned receivables and the debtors of same, provide all information required for collection, hand out the pertinent documents, and inform the debtors (third parties) of the assignment. The claim already ceded to ONGINEER in advance shall also apply to the acknowledged balance, as well as, in the case of an insolvency of the customer, to the then existing causal balance.
The processing or transformation of the TARGET PRODUCTS shall always be done by the ordering party for ONGINEER. If the TARGET PRODUCT is processed together with other items not belonging to ONGINEER, ONGINEER shall consequently acquire co-ownership of the new object in proportion to the value of the TARGET PRODUCT (invoice total, incl. VAT) to the other processed items at the time at which processing took place. Incidentally, for the item resulting from the processing, the same shall apply as for the TARGET PRODUCT delivered under reservation of title.
If the TARGET PRODUCT is combined with other objects not belonging to ONGINEER such that they cannot be separated from one another, ONGINEER then shall acquire joint ownership of the new item in proportion to the value of the TARGET PRODUCT (invoice total, incl. VAT) to the other processed items at the time at which combining took place. If the combining occurs such that CLIENT's item is regarded as the principal item, then it is deemed agreed upon that CLIENT shall transfer co-ownership to ONGINEER proportionally. CLIENT shall keep safe the resulting sole ownership or co-ownership for ONGINEER.
As security for claims against CLIENT, CLIENT shall assign to ONGINEER also all claims against a third party resulting from combining the TARGET PRODUCT with real property.
ONGINEER shall undertake to release the securities due ONGINEER at CLIENT's request insofar as the realisable value of the securities exceeds the secured accounts receivable by more than 10 %; the selection of the securities to be released shall be at the discretion of ONGINEER.
11. Industrial Rights
ONGINEER reserves property rights and copyrights in depictions, drawings, calculations, and other documents (offers, estimates, etc.) unless they are expressly being transferred; they must not be made accessible to third parties and they must be returned to ONGINEER upon request. This shall also apply to any written documents labelled as confidential. Their disclosure by CLIENT to third parties shall require the express written approval of ONGINEER.
Insofar as CLIENT obtains knowledge of the know-how of ONGINEER in the context of a DEVELOPMENT PROJECT, said know-how must not be passed on to third parties. The utilisation of the know-how by CLIENT may only take place after payment of the remuneration in full.
For TARGET PRODUCTS that are ordered from ONGINEER by CLIENT based on drawings, specifications, or samples, CLIENT shall be obliged to check for possible property rights of third parties and to not infringe upon them. If, due to a breach of this obligation, a third party is prohibiting production by claiming a property right belonging to said third party, or if the TARGET PRODUCT cannot be used due to a violation of the property right, ONGINEER shall be entitled - without having to verify the legal status and to the exclusion of any compensation for damages to CLIENT, no matter what the legal status may be - to stop production and delivery until the facts have been clarified and to demand compensation from CLIENT, in the amount of at least 15 % of the invoice total for the TARGET PRODUCT or service ordered. The ordering party shall already now hold ONGINEER harmless of any and all claims for damages and other claims for compensation of third parties, especially from the holders of rights, upon first request. Included in the scope of the damages shall also be such costs as ONGINEER may incur due to having to defend against claims of third parties.
It is expressly not being agreed upon that the deliveries to a location other than the factory of ONGINEER and a place of delivery and/or place of setup and place of assembly/installation is free from rights of third parties, including industrial property rights, brand rights, and copyrights.
Claims of CLIENT due to industrial property rights shall be excluded if these are at least also CLIENT's responsibility, or if they are based on or caused by CLIENT's specifications or instructions, or were caused by CLIENT's modification of deliveries or by bringing them to a location other than the place of delivery or place of assembly/installation. Furthermore, claims of CLIENT for violation of protection rights shall be excluded if CLIENT does not immediately inform ONGINEER of claims asserted by third parties.
If ONGINEER is responsible for the violation of a protection right, ONGINEER may, at its discretion and costs effect a right to use or modify or replace the service such that a property right violation no longer exists. If this is not possible, CLIENT shall be entitled to the claims for defects in accordance with the provisions of Articles 7 and 8 of these GT&C.
12. Applicable Law, Place of Jurisdiction, Final Provisions
The law of the Federal Republic of Germany shall be applicable to all legal relationships between ONGINEER and CLIENT. The applicability of the UN Convention on Contracts regarding the International Sale of Goods (CISG) shall be expressly excluded.
Unless agreed upon otherwise, the place of fulfilment shall be the headquarters of ONGINEER in 32339 Espelkamp (Germany) for all rights and obligations arising from this legal relationship, including the deliveries and payments.
Under exclusion of other places of jurisdiction, the place of jurisdiction for any and all disputes arising shall be Arnsberg (Sauerland, Germany); However, ONGINEER shall be authorised to sue CLIENT at its general place of jurisdiction.
These GT&C also shall remain valid if individual clauses should prove to be invalid. The invalid clause shall be amended or reinterpreted by the PARTNERS such that the business purpose intended by the invalid clause is achieved as far as possible. The same approach shall be taken if, in the conduct of the contractual relationship, a gap requiring supplementation results. If the invalidity is based upon a definition of performance or time, the statutorily permissible measure shall take its place.
If a provision of these GT&C is ineffective due to compulsory foreign law, CLIENT shall - upon request - negotiate with ONGINEER those contractual amendments and make those declarations towards third parties or government agencies through which the effectiveness of the affected provision and, if this is not possible, its business content also remains assured even based on the foreign law.