General Terms and Conditions (GTC) of ONgineer GmbH

Status: 01.08.2020

1 General, Scope of Application

1.1
The following GTC apply only to companies pursuant to § 14 BGB (German Civil Code). They apply exclusively and conclusively, even if not agreed separately in individual cases. In the case of ongoing business relations, this shall also apply in the event of conclusion of the contract by telex, telephone or other, in particular also electronic, means.

1.2
Any terms and conditions of the CLIENT that contradict or deviate from these GTC are expressly rejected. ONGINEER does not recognise them unless ONGINEER has expressly agreed to their validity in writing. Any different and deviating general terms and conditions of the CLIENT are hereby objected to. They shall be deemed to be waived, even if they are not expressly rejected again at the conclusion of the contract or at a later point in time.

The terms and conditions shall also apply if ONGINEER accepts the service of the CUSTOMER without reservation in the knowledge of terms and conditions of the CUSTOMER that contradict or deviate from the terms and conditions. Any performance of the contract by ONGINEER shall not replace the express written confirmation of deviating terms and conditions.

1.3
ONGINEER’s employees are not authorised to agree orally or in writing or otherwise on the applicability of terms other than these GTC. Amendments to these GTC or other contractual contents require the consent of ONGINEER’s management.

1.4
Subsidiary agreements, amendments, additions or supplements to the contract must be in writing; these GTC also apply to them.

1.5
Insofar as declarations according to these GTC must be made in writing, this shall also mean text form in addition to the written form. 2.

2 Offer documents, offer

2.1
ONGINEER develops products specially adapted to the needs of the respective CUSTOMER. The CUSTOMER shall independently and himself examine the relevant DEVELOPMENT PROJECT on the basis of ONGINEER’s offer, in particular as to whether it meets his requirements and needs.

2.2
At the request of a CUSTOMER, ONGINEER shall be free to examine whether ONGINEER submits an offer with regard to the desired work or service.

The CLIENT shall already draw ONGINEER’s attention to the regulations and standards relating to the execution of the delivery, the operation and the prevention of illness and accidents in the country of destination when placing the order.

ONGINEER is subsequently free to make an offer for a design and technical solution, including a SCHEDULE AND MILES PLANS, to this effect. The prices quoted are subject to the proviso that the order data on which the offer was based remain unchanged. In the case of ONservice, the offer is based on the technical data of the test item listed in the offer and the scope of measurement described therein, as stated by the CUSTOMER. In the calculation ONGINEER assumes that the DUT can be easily put into operation without special knowledge.

If the CUSTOMER accepts the offer, the design and technical solution, including the SCHEDULE and MILES SCHEDULE, are also agreed. The CLIENT is furthermore obliged to countersign the drawings and the SCHEDULE and LINEAR PLAN, even if changes occur during production, commissioning and manufacture on site. The changes proposed by ONGINEER in writing must be countersigned by the CLIENT in order to be considered approved and agreed. If there is no reaction by the CLIENT to the changes proposed by ONGINEER in the SCHEDULE and MILES SCHEDULE and the technical and design solution, they shall be deemed to have been approved and agreed after the expiry of 14 days after their receipt by the CLIENT. This shall also apply in particular to any adjustments to the price proposed by ONGINEER in connection with the change.

2.3
If the order is to be qualified as an offer pursuant to § 145 BGB, ONGINEER may accept it within four weeks. The contract shall only be concluded upon receipt of the written order confirmation by ONGINEER. Until the written order confirmation, all offers are subject to change and non-binding. In the event of immediate execution of the order, the delivery note or the invoice shall also be deemed to be the order confirmation.

2.4
If the CUSTOMER commissions ONGINEER exclusively with a service, the SUPPLIERS shall also be entitled to terminate the contract with a notice period of 14 days to the end of the month, without prejudice to the right to terminate the contract without notice.

3. terms of payment, prices

3.1
Unless otherwise stated in the order confirmation, ONGINEER’s prices shall apply “ex works”, plus the value added tax applicable on the day of invoicing. For services within the scope of ONservice, all costs of the measuring equipment and set-up times required for the measurement as well as the deployment of the specialist personnel required for the measurement are included in the prices.

Insofar as delivery to or installation or assembly at a location other than the registered office of ONGINEER is agreed, the CUSTOMER shall bear, in addition to the agreed remuneration, all necessary ancillary costs, such as travel expenses, transport costs, including the costs of the packaging normally used by ONGINEER or the packaging requested by the CUSTOMER, costs for the outward and return transport of the tools, as well as allowances.

Insofar as a service at a location other than the registered office of ONGINEER is agreed, the CUSTOMER shall also bear all necessary ancillary costs, such as travel expenses, board and lodging.

The prices apply in each case only for the contractually agreed quantity and execution. If the CUSTOMER wishes to make changes that require a higher level of expenditure than that on which the contract is based, ONGINEER reserves the right to make a reasonable change to the prices.
ONGINEER reserves the right, if after conclusion of the contract, costs increase unforeseeably, in particular due to collective wage agreements, material price increases, raw material price increases or energy cost increases, to increase the prices by the amount of the cost increase thereby incurred. In this case, price changes are only possible within the scope of and to compensate for the aforementioned price and cost increases.

3.2
The statutory value added tax is not included in the prices; it will be shown separately in the invoice at the statutory rate on the day of invoicing.

3.3
The deduction of a cash discount requires a special written agreement. Insofar as a cash discount agreement exists, the following shall apply: Partial payments are not eligible for cash discount.

3.4
Unless otherwise stated in the order confirmation, the price is to be paid net (without deduction) free paying agent and is due for payment immediately. If the CLIENT is in default of payment, ONGINEER shall be entitled to demand default interest in the amount of 8 percentage points above the statutory base interest rate per annum. If ONGINEER is able to prove a higher damage caused by default, ONGINEER shall be entitled to assert this. The CLIENT shall, however, be entitled to prove that ONGINEER has incurred no or significantly lower damage as a result of the delay in payment.

3.5
The CLIENT shall only be entitled to set-off rights if its counterclaims are legally established, undisputed or recognised by ONGINEER, or if they are in a reciprocal relationship (synallagma) to the main claim. The CLIENT shall only have a right of retention due to counterclaims that have been established, are undisputed and recognised by ONGINEER or are in a reciprocal relationship (synallagma) to the main claim. Furthermore, he is authorised to exercise a right of retention insofar as his counterclaim is based on the same contractual relationship. Credit notes are issued expressly for the purpose of offsetting. There shall be no entitlement to payment.

3.6
If there are doubts about the CLIENT’s ability to pay, ONGINEER reserves the right to demand advance payments or securities. If the CUSTOMER is seized without success or if the CUSTOMER falls into financial collapse, ONGINEER shall be entitled to withdraw from the contract, taking into account the expenses incurred. Under the same conditions, ONGINEER is entitled, after delivery to the CLIENT, to inspect the latter’s warehouse and to provisionally secure goods subject to retention of title or ownership by way of security until cash payment or provision of security has been made, irrespective of any previous agreements to the contrary. Transport and storage costs shall be borne by the CUSTOMER.

3.7
Insofar as ONGINEER is entitled to make partial deliveries and render partial services, these shall be remunerated with the rendering of the respective partial services.

4 Delivery time and execution

4.1
Insofar as the order confirmation does not expressly stipulate otherwise, the stated DEADLINES / MILES are non-binding details, for the observance of which no guarantee is assumed.

4.2
The delivery period shall commence on the date of the final order confirmation, but not before the complete clarification of all details of execution, in particular the receipt of any documents to be provided by the CUSTOMER as well as the receipt of an agreed down payment due upon conclusion of the contract. Compliance with the delivery period shall also be subject to the fulfilment of the contractual obligations, in particular all obligations to cooperate, such as the provision of the documents, materials, approvals and releases to be procured by the CUSTOMER.

4.3
The agreed delivery period shall be extended, without prejudice to the rights arising from default, by the period during which the CUSTOMER is in default with its obligations under this or any other contract.

4.4
The delivery period shall be deemed to have been complied with if the TARGET PRODUCT has left the factory by the expiry of the delivery period or, in the case of collection by the CUSTOMER, the delivery is ready for dispatch and the CUSTOMER has been notified accordingly.

The CUSTOMER cannot reject partial deliveries, unless a partial delivery is unreasonable or has been expressly excluded by agreement.

4.5
The agreed DATES / MILES shall also be deemed to have been met upon notification of readiness for dispatch if the TARGET PRODUCT could not be delivered on time or the service could not be provided on time through no fault of ONGINEER. The delivery period shall be extended appropriately in the event of measures within the scope of industrial disputes, in particular strikes and lock-outs in ONGINEER’s own company as well as in the event of industrial disputes in third party companies, insofar as ONGINEER is not at fault for taking over, taking precautions or averting, furthermore in the event of the occurrence of unforeseeable events, such as mobilisation, war, blockade, export and import bans, special legal or official regulations, raw material or fuel defects, fire or traffic blockages or force majeure, insofar as such obstacles affect the completion or delivery of the delivery item, occur at ONGINEER, a pre-supplier or sub-supplier or transporter and are not the responsibility of ONGINEER, whereby liability is only excluded for slight negligence. In the event of these preconditions ONGINEER is also entitled to withdraw from the contract. The present delivery time extensions shall also apply if the disruptions occur at a time when ONGINEER is in default.

4.6
If the delivery, manufacture, installation or development is delayed at the request of the CLIENT or for reasons for which the CLIENT is responsible, ONGINEER shall charge the CLIENT, beginning one month after notification of readiness for performance or shipment, for the costs arising from the storage and delay, in the case of storage in its own works with at least 2% of the invoice amount for each month or part thereof (subject to proof of significantly lower costs). The assertion of further rights arising from delay remains unaffected.

4.7
In addition, ONGINEER is entitled to withdraw from the contract and/or to demand compensation after setting and unsuccessful expiry of a reasonable deadline for the acceptance.

5 Assembly and Installation

In the event that assembly or installation is agreed, the following shall apply:

5.1
The CUSTOMER shall carry out the necessary preparatory work prior to the commencement of assembly or erection; in particular, the CUSTOMER shall provide access to the electrical and other lines necessary for assembly or erection, as well as the necessary supplies and objects. The CUSTOMER shall ensure that the necessary preparatory work has progressed to such an extent that the installation or assembly can be carried out according to plan.

5.2
The CLIENT shall provide in good time and at its own expense the items and materials required for assembly or erection, such as protective clothing and equipment, scaffolding, lifting gear, water and electricity, as well as circuit and wiring diagrams.

The CLIENT shall ensure that the technical, structural and other prerequisites for installation and assembly are established in good time in accordance with the SCHEDULE OF DATES AND MILES.

5.3
The CLIENT shall provide at its own expense sufficiently large, dry and lockable storage rooms at the place of assembly or erection for the parts, materials, tools and the like required for assembly or erection. The CLIENT shall ensure that adequate rooms that meet the relevant legal and occupational safety requirements are available for the assembly personnel.

6. ONservice

6.1

The tests to be carried out within the scope of the ONservice are based exclusively on the work described in ONGINEER’s offer. If the CLIENT requires additional services which were not included in ONGINEER’s offer, these shall be commissioned separately and invoiced by ONGINEER.

6.2
The ONservice includes the measurement of a test specimen provided by the CLIENT. ONGINEER shall be informed in writing in advance of any hazards of any kind that may emanate from the test specimen. This applies in particular to test specimens modified for measurement or abnormal conditions caused by the measurement.

6.3
ONGINEER also offers consulting services within the scope of the ONservice. If the CLIENT makes use of consulting services of ONGINEER and orders modifications to the DUT on the basis of these consultations, ONGINEER is entitled to carry out corresponding work (modifications) on the DUT. This is a pure service. Success, in particular a certification desired by the CUSTOMER, is neither guaranteed nor owed by ONGINEER.

6.4
The CUSTOMER shall bear the costs for the return shipment of the test specimen and the materials provided. Clause 7.2 shall apply.

7. transfer of risk

7.1
Unless otherwise stated in the order confirmation, delivery “ex works” is agreed. This also applies to carriage paid delivery and similar transport clauses. If processed goods are returned for reasons for which ONGINEER is not responsible, the CUSTOMER shall bear all risk.
If installation or assembly at another location has been agreed, the risk shall pass upon completion of the installation and assembly, unless otherwise agreed.

7.2
If the CLIENT so desires, ONGINEER shall arrange for the insurance of the delivery against theft, breakage, transport, fire and water damage as well as other insurable risks; the costs incurred in this respect shall be borne by the CLIENT.

7.3
A special acceptance of the TARGET PRODUCT must be agreed. This acceptance shall take place on the agreed acceptance date at ONGINEER’s premises or, in the case of an agreement for delivery to a place or installation or assembly at another place, at the place of destination. If this acceptance does not take place 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 to be in accordance with the contract and free of defects.

7.4
The CUSTOMER may not refuse acceptance of services due to insignificant defects.

8 Liability for defects

8.1
The services and deliveries of ONGINEER shall be deemed to be in accordance with the contract and accepted if the CLIENT does not immediately, at the latest, however, within 10 days after receipt, complain about them in writing. Commissioning by the CLIENT shall in any case be deemed to be acceptance in accordance with the contract. In addition to the sale of the TARGET PRODUCT, any form of treatment or processing as well as the start of any subsequent work for which our services are to be regarded as preliminary services shall also be regarded as acceptance by the CUSTOMER. Minor, in particular customary deviations with regard to quantity, weight and quality of up to 3 % nominal values shall not entitle the CUSTOMER to give notice of defects.

Claims for defects on the part of the CLIENT presuppose that the CLIENT must inspect the delivery immediately after receipt, insofar as this is feasible in the ordinary course of business, and, if a defect becomes apparent, must notify ONGINEER immediately.

A defect in a partial delivery does not entitle the CUSTOMER to withdraw from the entire contract, unless his interest in the entire contract is lost.

8.2
Insofar as there is a defect in the TARGET PRODUCT, ONGINEER is entitled, at its discretion, to subsequent performance in the form of rectification of the defect or delivery of a new item free of defects. In the case of rectification of defects, ONGINEER is obliged to bear all expenses necessary for the purpose of subsequent performance, in particular transport, travel, labour and material costs as well as the expenses for the removal of the defective item and the installation or fitting of the rectified or delivered defect-free item, insofar as these are not increased by the fact that the TARGET PRODUCT was taken to a place other than the place of performance. ONGINEER may refuse subsequent performance if the expenses for remedying the defect are likely to exceed the remuneration.

Installation and removal costs shall only be borne by us if the item has been installed in another item or attached to another item in accordance with its type and intended use and we are responsible for the defect which is the cause for the assertion of the claims for subsequent performance.

8.3
If the supplementary performance fails, the CUSTOMER shall be entitled to demand rescission or a reduction in price at his discretion

8.4
ONGINEER shall be liable in accordance with the statutory provisions insofar as the CLIENT asserts claims for damages based on intent or gross negligence, including intent or gross negligence on the part of ONGINEER’s representatives or vicarious agents. Insofar as ONGINEER is not accused of intentional breach of contract, the liability for damages shall be limited to the foreseeable, typically occurring damage.

8.5
ONGINEER shall be liable in accordance with the statutory provisions insofar as it culpably breaches an essential contractual obligation; in this case, however, liability for damages shall also be limited to the foreseeable, typically occurring damage. An essential contractual obligation shall be deemed to exist if the breach of duty relates to an obligation on the fulfilment of which the CUSTOMER relied and was entitled to rely.

8.6
Liability for culpable injury to life, limb or health shall remain unaffected; this shall also apply to mandatory liability under the Product Liability Act.

8.7
Unless otherwise stipulated above, liability is excluded.

8.8
The limitation period for claims for defects is 12 months, calculated from the transfer of risk.

8.9
If a notice of defect proves to be unjustified, ONGINEER shall be entitled to charge the CLIENT for all expenses incurred by ONGINEER as a result thereof.

8.10
Replacement shall only be provided for missing parts if their delivery to ONGINEER is acknowledged or evidenced by a delivery note signed by ONGINEER and the risk for the missing parts has passed to ONGINEER. The goods delivered to ONGINEER by the CLIENT shall be accepted by ONGINEER upon receipt subject to the factually correct specification of their properties. An inspection shall take place during production. For missing parts which are delivered in larger quantities, replacement shall therefore only be provided if their delivery is documented and the number of pieces or the weight was jointly determined upon acceptance.

9. joint and several liability

9.1
Any further liability for damages than provided for in the foregoing is excluded – regardless of the legal nature of the asserted claim. This applies in particular to claims for damages arising from culpa in contrahendo, from other breaches of duty or from tortious claims for compensation for property damage pursuant to § 823 BGB.

9.2
An exclusion period of 18 months shall apply to the limitation of all claims which are not subject to the limitation period due to a defect. It shall commence as of knowledge of the damage and the person causing the damage.

9.3
The preceding limitation shall also apply insofar as the CUSTOMER demands reimbursement of useless expenses instead of a claim for damages in lieu of performance.

9.4
Insofar as liability for damages against ONGINEER is excluded or limited, this shall also apply with regard to the personal liability for damages of its employees, workers, staff, representatives and vicarious agents.

10. Retention of Title / Security Ownership

10.1
ONGINEER retains title to the delivered item until receipt of all payments arising from the business relationship with the CLIENT. Insofar as ONGINEER agrees with the CLIENT on payment of the remuneration on the basis of the cheque or bill of exchange procedure, the reservation also extends to the redemption of the bill of exchange accepted by ONGINEER by the CLIENT and does not expire by crediting the cheque received. If the CLIENT breaches its contractual obligation or defaults on payment, ONGINEER may withdraw from the contract if it does not fulfil its obligations after setting a reasonable deadline or if ONGINEER cannot reasonably be expected to adhere to the contract even without a reminder. ONGINEER may also declare the withdrawal by taking back the TARGET PRODUCT. After taking back the TARGET PRODUCT, ONGINEER is entitled to realise it. The proceeds of realisation shall be credited against the CUSTOMER’s liabilities – less reasonable realisation costs.

10.2
The CUSTOMER shall be obliged to treat the item with care until the final transfer of ownership; in particular, he shall be obliged to insure it adequately at his own expense against damage by fire, water and theft at the replacement value. If maintenance and inspection work is required, the CUSTOMER must carry this out in good time at its own expense.

10.3
In the event of seizures or other interventions by third parties, the CLIENT must immediately notify ONGINEER in writing so that ONGINEER can bring an action in accordance with § 771 ZPO. Insofar as the third party is not in a position to reimburse ONGINEER for the judicial and extrajudicial costs of an action pursuant to § 771 ZPO, the CLIENT shall be liable for the loss incurred.

10.4
The CUSTOMER is entitled to resell the TARGET PRODUCT in the ordinary course of business; however, he already now assigns to ONGINEER all claims in the amount of the final invoice amount (including value added tax), which accrue to him from the resale against his customers or third parties, irrespective of whether the item has been resold without or after processing. The CUSTOMER shall remain authorised to collect this claim even after the assignment. The authority of ONGINEER to collect the claim itself remains unaffected by this. However, ONGINEER undertakes not to collect the claim as long as the CLIENT meets his payment obligations from the collected proceeds, does not fall into arrears and, in particular, no application for the opening of insolvency proceedings has been filed or there is no cessation of payments. However, if this is the case, ONGINEER may demand that the CLIENT discloses the assigned claims and their debtors, provides all information necessary for collection, hands over the associated documents and informs the debtors (third parties) of the assignment. The claim assigned by ONGINEER in advance also relates to the recognised balance, as in the case of insolvency of the customer to the then existing causal balance.

10.5
The processing or transformation of the TARGET PRODUCT by the customer is always carried out for ONGINEER. If the TARGET PRODUCT is processed with other items not belonging to ONGINEER, ONGINEER acquires co-ownership of the new item in the ratio of the value of the TARGET PRODUCT (final invoice amount, including VAT) to the other processed items at the time of processing. In all other respects, the same applies to the item created by processing as to the TARGET PRODUCT delivered under reservation.

10.6
If the TARGET PRODUCT is inseparably mixed with other items not belonging to ONGINEER, ONGINEER shall acquire co-ownership of the new item in the ratio of the value of the TARGET PRODUCT (final invoice amount, including VAT) to the other mixed items at the time of mixing. If the mixing takes place in such a way that the customer’s item is to be regarded as the main item, it shall be deemed agreed that the CUSTOMER transfers proportional co-ownership to ONGINEER. The CUSTOMER shall keep the sole ownership or co-ownership thus created for ONGINEER.

10.7
The CUSTOMER also assigns to ONGINEER the claims as security against him which arise against a third party through the connection of the TARGET PRODUCT with a piece of real estate.

10.8
ONGINEER undertakes to release the securities to which it is entitled at the CUSTOMER’s request insofar as the realisable value of the securities exceeds the claims to be secured by more than 10%; the selection of the securities to be released is incumbent upon ONGINEER.

11. property rights

11.1
ONGINEER reserves the property rights and copyrights to illustrations, drawings, calculations and documents (offers, cost estimates, etc.), insofar as they are not expressly transferred; they may not be made accessible to third parties and must be returned upon request by ONGINEER. This also applies to such written documents which are designated as “confidential”. The CUSTOMER requires the express written consent of ONGINEER before passing them on to third parties.

11.2
Insofar as the CUSTOMER gains knowledge of ONGINEER’s know-how within the scope of a DEVELOPMENT PROJECT with ONGINEER, he may not make this know-how accessible to third parties. The CUSTOMER may only use the know-how after full payment of the remuneration.

11.3
TARGET PRODUCTS commissioned to ONGINEER by the CLIENT according to drawings, specifications or samples are subject to the CLIENT’s obligation to examine and not to infringe any third-party property rights. If, in the event of non-compliance with this obligation, production is prohibited by a third party with reference to an industrial property right belonging to him or if the TARGET PRODUCT cannot be used due to the infringement of the industrial property right, ONGINEER shall be entitled – without examining the legal situation and to the exclusion of all claims for damages by the CLIENT, irrespective of the legal grounds – to discontinue production and delivery until the facts have been clarified and to demand compensation from the CLIENT, at least in the amount of 15% of the invoice value for the ordered TARGET PRODUCT or service. The CUSTOMER shall already now indemnify ONGINEER against claims for damages and other claims for compensation by third parties, in particular by holders of rights, upon first request. The scope of the damage also includes such costs incurred by ONGINEER through the defence against claims of third parties.

11.4
It is expressly not agreed that the deliveries at a location other than the works of ONGINEER and at the place of delivery or installation and assembly shall be free of third party rights, including industrial property rights, trademark rights and copyright.

Claims of the CLIENT due to infringements of industrial property rights are excluded, insofar as the CLIENT is at least also responsible for these or they are based on its specifications or instructions or are caused by the fact that it has modified deliveries or has moved them to a place other than the place of delivery or installation. Furthermore, claims of the CLIENT due to infringement of industrial property rights are excluded insofar as he does not immediately inform ONGINEER of claims asserted by third parties.

If ONGINEER is responsible for the infringement of an industrial property right, it may, at its own discretion and expense, obtain a right of use or modify or replace the performance in such a way that the infringement of the industrial property right no longer exists. If this is not possible, the CUSTOMER shall be entitled to the defect rights in accordance with sections 7 and 8 of these GTC.

12 Applicable law, place of jurisdiction, final provisions

12.1
The law of the Federal Republic of Germany shall apply to all legal relationships between ONGINEER and the CLIENT. The validity of the UN Convention on Contracts for the International Sale of Goods (CISG) is expressly excluded.

12.2
Unless otherwise agreed, the place of performance for all rights and obligations arising from this legal relationship, including deliveries and payments, shall be the head office of ONGINEER, 32339 Espelkamp.

12.3
To the exclusion of other places of jurisdiction, the place of jurisdiction for all disputes arising is Arnsberg (Sauerland); ONGINEER is, however, entitled to sue the CLIENT at the CLIENT’s general place of jurisdiction.

12.4
These GTC shall remain valid even if individual clauses should prove to be invalid. The invalid clause shall be supplemented or reinterpreted by the PARTNERS in such a way that the economic purpose intended by the invalid provision is achieved as far as possible. The same procedure shall be followed if a gap requiring supplementation arises during the performance of the contractual relationship. If the invalidity is based on a performance or time provision, it shall be replaced by the legally permissible measure.

12.5
If a provision of these GTC should be invalid with regard to mandatory foreign law, the CLIENT shall, upon request, agree those contractual supplements with ONGINEER and make those declarations to third parties or authorities by which the validity of the affected provision and, if this is not possible, its economic content remains guaranteed under the foreign law.