Kühn Controls AG, terms and conditions of sale and service
Deliveries and services of Kühn Controls AG and affiliated companies are made exclusively according to the Supply of Products and Services of the Electrical and Electronics Industry ("Green Delivery" - GL) published by ZVEI - German Electrical and Electronic Manufacturers' Association, was subsequently complemented by Kühn Controls additional conditions.
In case of contradictions, the German version shall prevail.
1.1. The following expressions shall have the following meanings:
1.1.1. The Company: the relevant Kühn Controls Aktiengesellschaft as notified to the buyer.
1.1.2. The Buyer: the person, firm or company referred to as the Buyer overleaf.
1.1.3. Particulars of Contract: the particulars set out on the Companys acknowledgement of order forms.
1.1.4. Contract: the terms and conditions set out herein together with the Particulars of Contract.
1.1.5. Goods: the quantity and description of items set out on the Particulars of Contract.
1.1.6. Ex Works = EXW Incoterms: the terms as defined by the International Chamber of Commerce (ICC) Guide to Incoterms 2010, subject to any variation herein.
1.1.7. Services: the services set out in the Particulars of Contract.
2. Construction of contract
2.1. These Conditions alone (as varied in accordance with Condition 2.2) shall govern and be incorporated in every contract for the supply of goods and services made by or on behalf of the Company with the Buyer. They shall apply in place of and prevail over any terms and conditions (whether or not in conflict or inconsistent with these Conditions) contained or referred to in any documentation submitted by the Buyer or in any correspondence or elsewhere or implied by trade, custom, practice or course of dealing.
2.2. No variation exclusion or addition to these Conditions shall be effective unless expressly stated in any written contract between the parties or otherwise agreed in writing and signed on behalf of the Company by a director or other authorised person. In the event of variation or suspension of supply of goods or services following the Buyers instructions, the contract price shall be adjusted accordingly.
2.3. No servant or agent of the Company has any authority to make any representations or give any warranty in relation to the Goods or materials to be used, or to agree to any variation, exclusion or addition to these Conditions unless such representation, warranty, variation, exclusion or addition is expressed in writing and authorised in accordance with Condition 2.2.
2.4. The Terms and Conditions together with the Particulars of Contract and any document referred to these Terms and Conditions represent the entire agreement between the parties in relation to the sale of Goods and the supply of Services and supersedes all previous correspondence, discussions and negotiations. In entering into this agreement the Buyer acknowledges that it does not rely on any representation, advice or recommendations (whether negligent or innocent) made before or on entering into any representation, advice or recommendations made or given fraudulently.
2.5. These conditions contain exclusion, indemnity and exemption clauses and the Buyer agrees that they are fair and reasonable in all the circumstances of the Contract between the parties
2.6. A tender or quotation of the Company shall constitute only an invitation for an order subject to these conditions and no contract shall result until confirmed in writing by the Company.
3. Property and risk
3.1. The risk in goods shall pass to the Buyer as soon as the Goods leave the Companys premises or manufacturing site to be delivered to a place in Germany nominated by the Buyer notwithstanding that such delivery may not be to the final destination.
3.2. Notwithstanding delivery and the passing of risk, the Goods remain the property of the Company in full until the Buyer pays the Company in full the price in accordance with the Condition 4 below (together with any accrued interest), and all other amounts owed by the Buyer to the Company in respect of any other contract.
3.3. Notwithstanding any purported contrary appropriation by the Buyer, all payments made by the Buyer to the Company shall be appropriated first to the Goods which have been used/re-sold by the Buyer and then to Goods which remain in the possession or under the control of the Buyer.
3.4. Until property in the Goods passes the Buyer is in possession of the Goods solely in a fiduciary capacity and shall keep the Goods free from any encumbrances, properly stored, insured and identified as the Companys property. Nothing in this Condition shall prevent the Buyer from selling those Goods in the ordinary course of its business.
3.5. The Buyers right to possession shall automatically cease in the event of the presentation of a winding-up or bankruptcy petition and/or petition for an Administration Order or of the appointment of an Administrative Receiver over any of the Buyers assets or undertakings or if a Winding-Up or Bankruptcy Order is made against the Buyer, or if the Buyer goes into voluntary liquidation or calls a meeting of or makes any arrangement or composition with creditors.
3.6. The Company reserves the right to repossess and resell any of the Goods to which it has retained title and the Buyer hereby grants an irrevocable right and licence to the Company and its employees and the agents to enter any premises where the Goods may be situated in order to repossess any Goods.
3.7. The Company has a general lien on all property of the Buyer, including but without limitation any intellectual property, in the Companys possession in satisfaction of any amount owed by the Buyer to the Company under any contract. The Company may do anything necessary to put such property into a saleable condition; sell such property on such terms as it may think fit and retain from the proceeds of the sale an amount equal to the amount owed by the Buyer to the Company under any contract and the costs or expenses incurred by the Company in putting the property into saleable condition and selling it.
4.1. The price for the Goods shall be as stated on the Particulars of Contract.
Unless otherwise expressed the price shall not include commissioning, installation, assembly and related services which services shall be payable in accordance with Clause 12 hereof.
4.2. Contract prices are exclusive of Value Added Tax which shall be an additional liability of the Buyer.
4.3. Unless otherwise expressly provided in the contract, prices are Ex-Works (EXW) Incoterms 2010.
4.4. The Company shall be entitled to increase the Contract price by the amount of any increase in import or other duties or in the cost of materials, labour or transport by the amount of any increase in the cost of such items between the Contract and Delivery dates.
4.5. Contract prices are inclusive of the Companys standard packaging. The Company retains the right to use additional packing materials where the Company at its sole discretion believes these to be necessary which cost shall be additionally payable by the Buyer. Packing cases, skids, drums or other containers will be returnable by the Buyer at its expense if so required by the Company. The Company reserves the right to make a charge for the same if they are not returned in good condition.
4.6. Invoices shall be payable by the Buyer within 30 days of their date subject to any requirement of the Company specified in or prior to the Contract requiring the payment of an advance deposit or that the goods will be supplied only against pro-forma invoice. The Buyer will be notified of any discount which may be applicable.
4.7. The Buyer shall pay interest on all overdue amounts at the rate of 2% over the interest paid on overdraft by the Deutsche Bank branch Pforzheim, from time to time to accrue on a daily basis, from the due date for payment until receipt by the Company of the full amount (including any accrued interest) whether before or after judgement. Any monies received by the Company after the due date for payment may (notwithstanding any contrary stipulation by the Buyer) be applied by the Company towards payment of any interest accrued.
5. Default in payment
5.1. If the Buyer cancels any order other than as a result of the failure of the Company to meet such order in accordance with these Terms and Conditions (and subject to Condition 14) the Buyer shall be liable to the Company for the price of the order plus any costs or expenses incurred by the Company in respect of that order.
5.2. If the Buyer commits any default or breach of its obligations set out in these terms and conditions or any of the events set out in Condition 3.5 occur:
5.2.1. the Company shall immediately and without further notice be entitled to terminate all outstanding contracts with the Buyer, suspend further deliveries to the Buyer, stop Goods in transit, cease to supply Services to the Buyer, suspend work (including Fitting Work as defined in Condition 11) and exercise the Companys rights under the Condition 3.6; and
5.2.2. any indebtedness of the Buyer to the Company (including interest accrued and any costs or expenses incurred by the Company pursuant to Condition 5.1) shall immediately become due and payable.
5.3. The Companys rights and remedies contained in these Terms and Conditions are cumulative and not exclusive of any rights or remedies provided by law.
6.1. Delivery of Goods shall be Ex-Works (EXW) according to INCOTERMS 2010 and the risk in the goods shall pass in accordance with Clause 3.1 hereof.
6.2. The Company may at its discretion agree to deliver goods by its standard method free of charge provided that the risk passes to the Buyer as soon as the Goods leave the Companys premises or manufacturing site. Any express or next day delivery shall be at the cost of the Buyer and the risk shall pass in accordance with this condition.
6.3. The Company has the right in its absolute discretion to make part or instalment delivery and to invoice such instalments separately. Each part or instalment shall be treated as a separate contract for all purposes of these conditions.
6.4. Dates or periods for delivery stated in the Contract are approximate and time of delivery shall not be of the essence though the Company will make all reasonable endeavours to comply therewith. The Companys obligations to deliver shall at all times be subject to the prompt receipt of all specifications, final approved prints and any other details, drawings, documents or information essential to the proper execution of the Contract.
6.5. The Buyer may not claim for shortage in any delivery unless (where reasonably practicable) noted by the Buyer on the receipted delivery note or (where not reasonably practicable) notified to the Company within three days of the Buyer becoming aware of the shortage and in any case within 30 days of delivery.
6.6. The Buyer may not claim for any damage caused in transit unless notified to the Company within three days of the Buyer becoming aware of the damage and in any case within 30 days of delivery.
6.7. Any liability of the Company for shortage in delivery or damage in transit shall be subject to the Company being reasonably satisfied that such shortage or damage has occurred.
6.8. If the Buyer does notify the Company of a shortage and the Company is reasonably satisfied that such shortage has occurred, the Buyer may not reject the Goods and the breach is to be treated as a breach of warranty.
6.9. The Buyer shall promptly unload the Goods when delivered and the Company shall not be liable for damage caused after the Goods have been unloaded including damage during unloading unless caused by the Companys servants or agents. Clear and reasonable access to the delivery point shall be made available by the Buyer.
6.10. The Company shall not be liable for any consequential loss to the Buyer arising out of delay in delivery or non delivery of goods due to force majeure as defined in Clause 14 hereof or any other cause whatsoever beyond the Companys complete control.
6.11. The Company may by notice in writing:
6.11.1. Extend the period for its performance of the Contract by specifying a reasonable additional period for performance; or
6.11.2. Cancel the Contract to the extent that it is unfulfilled or if Production and/or delivery is delayed by more than three months as a result of technical changes introduced by the Buyer to the Goods or in the event that the Buyer fails to provide information in writing on quantity, quality, description and any specification of the Goods within seven days of service of a written notice by the Company on the Buyer requiring delivery of such information. In the event that the Company elects to terminate the Contract, then the Company shall be entitled to receive payment for the Goods and services of an amount equal to the cost of such Goods and services together with a profit margin which is equivalent as a percentage over cost to the Company to that percentage over cost to which it would have been entitled as a percentage of cost on the overall Contract had it been completed. The determination of such shall be made by the Company and shall be final and binding on the Buyer as amount due upon termination by the Buyer to the Company in respect of Goods and/ or services supplied under the Contract.
6.12. The Company may at its discretion agree to the return by the Buyer of the Goods provided that:
6.12.1. the Company shall make a handling charge of 25% of the invoice value of the Goods.
6.12.2. the Goods are returned in their original packaging and are in a resaleable condition.
6.13. The Buyer shall have accepted the Goods when he intimates to the Company that he has accepted them or when the Goods have been delivered and he does any act in relation to them which is inconsistent with the ownership of the Company, regardless of whether or not he has actually examined the Goods.
Where the Company provides the Buyer with samples of Goods then the following Conditions shall apply:
6.14.1. These Terms and Conditions of sale shall not apply while the samples are in the Buyers possession.
6.14.2. The samples shall, if not purchased by the Buyer, be returned to the Company within one month of the date of delivery.
6.14.3. If the Buyer fails to return the samples in accordance with Condition 6.14.2, the Company may invoice the Buyer for the full value of the samples which shall become due in accordance with Condition 4.6.
The Company may at its sole discretion agree to undertake such performance tests on the Goods as the Buyer may request in writing.
Where the Company so agrees the following Conditions shall apply:
6.15.1. All requests shall be in writing and in such sufficient detail so as to enable the Company to make a considered decision as to whether or not it will perform the tests.
6.15.2. The Buyer shall pay an additional sum to the Company for the performance of such tests as notified to the Buyer by the Company.
6.15.3. The Buyer shall hold all test results in confidence and will not release them (or allow their release) to any third party.
6.15.4. Such tests will be carried out as far as reasonably practicable in accordance with the Buyers instructions.
6.15.5. Any test results provided by the Company are for the Buyers reference only and do not amount to a representation or warranty as to the nature, standard or quality of any Goods provided by the Company.
6.15.6. All test results shall relate exclusively to the sample or samples tested in accordance with this Condition 6.15, so that no undertaking is given by the Company in relation to products which are similar in size, standard and nature to those actually tested.
6.15.7. If the Buyer makes payment in accordance with Condition 6.15.2, the Company shall make available the test results within any time agreed.
7.1. All descriptive specifications, drawings and particulars or weights and dimensions submitted with any tender or quotation of the Company are approximate only and the description and illustrations in the Companys catalogues, price lists and other advertising matter are intended merely to give a general idea of the Goods and shall not constitute any term of the Contract. Certified outline drawings will be supplied on request free of charge after Contract.
7.2. Performance figures stated in the Contract shall be subject to recognised tolerance and rejection limits.
8. Fitness for purpose and satisfactory quality
8.1. Except as set out in this Condition 8, all conditions, warranties and representations, expressed or implied by (a) statute, (b) common law or (c) otherwise, in relation to the Goods or Services are excluded.
8.2. The Company warrants to the original Buyer that the Services shall be performed with reasonable skill and care.
8.3. The Company warrants to the original Buyer that the Goods shall be reasonably fit for any specific purpose expressly notified in writing to the Company prior to delivery.
8.4. The Company warrants to the original Buyer that any Goods supplied by the Company shall, for the period of twelve months from the date of delivery, be free from any defect on appearance and finish, such defect not being construed as a minor defect for the purposes of Condition 8.5 below. This warranty is subject to the following conditions:
8.4.1. That the device shall only be of satisfactory appearance and finish, namely such that a reasonable Buyer would expect in the circumstances.
8.4.2. That the device shall only remain of a satisfactory appearance and finish for time as it is reasonable to expect.
8.4.3. That any defect in appearance or finish of the device which is discovered by the Buyer once the device has been delivered to and accepted by the Buyer shall not constitute a defect in the device which was in existence at the time the device was sold by the Company to the Buyer.
8.4.4. That the alleged defect arising under clause 8.4 shall have been notified in writing to the company at its Head Office within seven days of its discovery.
8.4.5. That the warranty extends only to such parts of the device as have been manufactured by the Company or by any company within the Group of which the Company forms part.
8.4.6. That the Company shall not be liable in any way for the appearance and finish of any part of the Goods which were not manufactured by the Company or by any company within the Group of which the Company forms part, save to the extent that the Company is able to recover in respect of such liabilities as against the manufacturer thereof.
8.4.7. That any express warranty given in respect of the Goods and the obligations in respect thereof herein set out are undertaken by the Company only to the original Buyer.
8.5. The Company warrants to the original Buyer subject to the terms and conditions hereinafter stated that any Goods sold by the Company are free from any minor defect in material or workmanship. This warranty is subject to the following conditions:
8.5.1. That the Company shall not be liable for any minor defect arising out of the fact that the Goods have been or are being used, connected or installed incorrectly by the Buyer or any person acting on behalf of the Buyer.
8.5.2. That the actual applied voltage use in connection with the device shall be within the limits namely from 10% below to 6% above the normal voltage.
8.5.3. With regard to radio interference - that unless otherwise agreed in writing, it is the responsibility of the Buyer to apply any necessary suppression at the point of installation.
8.5.4. That when applicable the Goods shall have been mounted in an enclosure of good quality which effectively excludes dust and moisture.
8.5.5. That short circuit protection (either HRC fuses or circuit breakers) shall not exceed the maximum capacity called for in the Companys catalogue.
8.5.6. That contact welding caused by short circuit shall not constitute a failure of the Goods to comply with the said warranty.
8.5.7. That any minor defect in the device shall have been notified in writing to the Company at its Head Office within seven days of its discovery and within the period of its service life stated in the Companys catalogue.
8.5.8. That the warranty extends only to such parts of the Goods as have been manufactured by the Company or by any company within the Group of which the Company forms part.
8.5.9. That the Company shall not be liable in any way for any minor defect of any part of the Goods which were not manufactured by the Company or by any company within the Group of which the Company forms part save to the extent that the Company is able to recover in respect of such liability as against the manufacturer thereof.
8.5.10. That any express warranty given in respect of the Goods and the obligations in respect thereof herein set out are undertaken by the Company only to the original Buyer.
8.6. The Company warrants to the original Buyer subject to the terms and conditions hereinafter stated that any Goods sold by the Company are safe. This warranty is subject to the following conditions:
8.6.1. That the Company shall not have breached this warranty where the Buyer or any person acting on behalf of the Buyer has carried out any act or omission in relation to the Goods which contravenes the instructions given by the Company, in any form whatsoever, relating to the connection, fitting, usage or any other activity connected to the Goods.
8.6.2. That any warnings given by the Company, in any form whatsoever, to the Buyer relating to any possible or apparent hazardous aspects of the Goods shall amount to the appropriate warnings which should have been given by the Company in the circumstances.
8.6.3. That any alleged failure in the safety of the Goods shall have been notified in writing to the Company at its Head Office within seven days of its discovery and within the period of its service life stated in the Companys catalogue.
8.6.4. That the warranty extends only to such parts of the Goods as have been manufactured by the Company or by any company within the Group of which the Company forms part.
8.6.5. That the Company shall not be liable in any way for the safety of any part of the Goods which were not manufactured by the Company or by any company within the Group of which the Company forms part save to the extent that the Company is able to recover in respect of such liabilities as against the manufacturer thereof.
8.6.6. That any express warranty given in respect of the Goods and the obligations in respect thereof herein set out are undertaken by the Company only to the original Buyer.
8.7. The Company warrants to the original Buyer subject to the terms and conditions herein stated that any Goods sold by the Company are durable. This warranty is subject to the following conditions:
8.7.1. That the Goods will only be durable at the time they are supplied to the Buyer.
8.7.2. That the Company will not have breached this warranty where the Buyer or any person acting on the Buyers behalf is or has carried out or has failed to carry out any act which would not ordinarily occur with the usage of particular Goods and which consequently has or is reducing the expected durability of the Goods.
8.7.3. That any alleged failure in the durability of the Goods shall have been notified in writing to the Company at its Head Office within seven days of its discovery and within the period of its service life stated in the Companys catalogue.
8.7.4. That the warranty extends only to such part of the Goods as have been manufactured by the Company or by any company within the Group of which the Company forms part.
8.7.5. That the Company shall not be liable in any way for the lack of durability of any part of the Goods which were not manufactured by the Company or by any company within the Group of which the Company forms part save to the extent that the Company is able to recover in respect of such liability as against the manufacturer thereof.
8.7.6. That any express warranty given in respect of the Goods and the obligations in respect thereof herein set out are undertaken by the Company only to the original Buyer.
8.8. The Company warrants to the original Buyer subject to the terms and conditions herein stated that any Goods sold by the Company will perform the number of operations specified for such Goods in the contract. This warranty is subject to the following conditions:
8.8.1. That the Goods shall have been properly selected by the Buyer from the Companys catalogue for the purpose of its intended use.
8.8.2. That the actual applied voltage use in connection with the Goods shall be within the limits namely from 10% below to 6% above the normal voltage.
8.8.3. With regard to radio interference - that unless otherwise agreed in writing it is the responsibility of the Buyer to apply any necessary suppression at the point of installation.
8.8.4. That short circuit protection (either HRC fuses or circuit breakers) shall not exceed the maximum capacity called for in the Companys catalogue.
8.8.5. That contact welding caused by short circuits shall not constitute a failure of the Goods to comply with the said warranty.
8.8.6. That any alleged failure in the Goods shall have been notified in writing to the Company at its Head Office within seven days of its discovery and within the period of its service life stated in the Companys catalogue.
8.8.7. That the warranty extends only to such parts of the Goods as have been manufactured by the Company or by any company within the Group of which the Company forms part.
8.8.8. That the Company shall not be liable in any way for the performance or fitness for any purpose of any part of the Goods which were not manufactured by the Company or by any company within the Group of which the Company forms part save to the extent that the Company is able to recover in respect of such liability as against the manufacturer thereof.
8.8.9. That any express warranty given in respect of the Goods and the obligations in respect thereof herein set out are undertaken by the Company only to the original.
8.8.10. Any Goods alleged to be faulty shall be returned if so required by the Company at the Buyers cost to such place in Germany as the Company may specify and if the alleged complaint is in the opinion of the Company justified the Company will refund such cost and will at its own cost and without further cost to the Buyer at its option either repair or replace the same and redeliver the repaired or substituted Goods to the Buyer whereupon the company shall be under no further liability to the Buyer in respect of such Goods.
9. Limitation of liability
9.1. The Companys entire liability under these Terms and Conditions is Limited to the price for the Goods or Services supplied to the Buyer.
9.2. The Company shall not be liable to the Buyer whether for negligence, breach of contract, misrepresentation or otherwise for any loss of profit, damage incurred as a result of third party claims, nor for any indirect, incidental or consequential loss howsoever arising.
9.3. Nothing in these Terms and Conditions shall operate to exclude or restrict the Companys liability for death or personal injury resulting from the Companys negligence or other liability to the extent which such liability cannot, by law or otherwise be restricted or excluded.
10. Patents, trademarks, intellectual property, etc
10.1. The Buyer shall not remove from the Goods any imprint or insignia affixed upon it recording any patent, trademark, copyright or other intellectual property right applicable to it and all other copyrights, patents, design rights, trade marks and other intellectual property rights in the Goods (whether or not registered) shall remain the exclusive property of the Company, unless otherwise agreed in writing by the Company.
10.2. Any reference by the Company to patents, copyright, registered designs, trademarks and analogous forms of protection shall not constitute a warranty of the validity thereof.
10.3. In the event that Goods are manufactured or any process is applied to the Goods by the Company in accordance with a specification submitted by the Buyer, the Buyer shall indemnify the Company against all loss, damages, costs and expenses awarded against or incurred by the Company in connection with or paid or agreed to be paid by the Company in settlement of any claim for infringement of any patent, copyright, design, trademark or other industrial or intellectual property rights of any other person which results from the Companys use of the Buyers specification.
10.4. In the event that the Buyer receives notice of any infringement of any patent, trademark, copyright or other intellectual property right of the Company the Buyer shall immediately notify the Company of the circumstances of the infringement.
11. Commissioning and installation
11.1. In addition to the aforesaid conditions of sale, the following conditions shall apply to all assembly, commissioning, installation, fitting and related services.
11.2. Fitting Work is understood to include the following services: the erection of complete control panels and distribution boards, the erection of extension sections, the implementation of onsite modifications or extensions, the installation of busbar trunking systems and the implementation of partial installation such as the laying of connecting cables between busbar systems of differing amperage. Where, for reasons of brevity and simplicity, the text below refers exclusively to Fitting Work, all statements made in respect of this shall apply in like manner to assembly, commissioning, installation and related services.
11.3. The Buyer shall ensure that Fitting Work can begin punctually on the date agreed between the parties and can be carried out without hindrance.
Systems to be commissioned must be ready for commissioning. Systems requiring Fitting Work must be in a fit state for such work to commence.
11.4. If adequate and suitable accommodation is not immediately available in the vicinity of the site in which Fitting Work is to be carried out, the Buyer will undertake to render all necessary assistance in the procurement of such accommodation. In the event that the efforts of the Company and Buyer remain without success the Fitting Work shall be postponed until such accommodation is available and the Company shall not be liable for any consequential loss arising as a result.
11.5. If at any time during the Contract the Buyer shall delay in procuring supply to the Company of any technical, design, specification or other information or data reasonably required by the Company to carry out the performance of the Contract then the Company shall not be liable for any direct, indirect or consequential loss suffered by the Buyer or any other person arising from any delay on the part of the Company caused by the delay in supply of any such information.
12. Installation cost
12.1. Fitting Work is to be charged on the basis of time and outlay, or an overall price provided that such price is agreed in writing by the parties in advance of the commencement of the Fitting Work and stipulated on the Particulars of Contract. In the absence of any prior written agreement, the cost shall be calculated on a time and outlay basis. Subject to agreement in writing between the parties Fitting Work may also be charged on a unit price basis.
12.2. The cost of Fitting Work shall always be charged separately and shall be exclusive of Value Added Tax which shall be an additional liability of the Buyer.
12.3. In the event that the actual periods for completing the Fitting Work differ to a substantial degree from those agreed between the parties and stipulated on the Particulars of Contract the Buyer shall bear the additional costs arising, insofar as the reasons for any extra periods and any discrepancy are not attributable to the Company and insofar as the Company draws the Buyers attention to these extra periods and any discrepancies within reasonable time, additional costs shall be chargeable in accordance with the Companys Schedule of Accounting Rates for Fitting and Commissioning.
12.4. In the event that the Company or its personnel are unable to or prevented from completing the Fitting Work during the agreed working periods for reasons not attributable to the Company, the resulting lost time shall be charged as normal working time in accordance the rates laid down in Clause 12 hereof (if applicable) or in accordance with the rates laid down in the Schedule of Accounting Rates for Fitting and Commissioning and the Buyer shall be liable for payment thereof. The liability under this clause shall be in addition to the installation cost due under Clause 12 hereof.
12.5. Hours worked are to be verified by the Buyer at periods not greater than one week, said verification being the basis for invoicing and for calculating the sums due under Clause 12.1 hereof. Should this verification be delayed, or not be submitted, invoicing shall be based on the Companys time sheets and the Company shall rely upon these for the purpose of calculating the sums due under Clause 12.1 hereof.
13. Accident prevention
13.1. In the event that the Fitting Work is to be carried out at the Companys premises the Company shall:
13.1.1. provide any personnel made available by the Buyer in connection with the Fitting Work such information about the Companys operations including details of health and safety regulations applicable to the Companys business operations.
13.1.2. notify such personnel of any dangers in the state of the Companys premises and/or business operations, provided that the Companys fitting supervisor, whose identity shall be made known to the Buyer, shall be responsible for instructing and supervising all personnel (including the personnel made available by the Buyer) with regard to compliance with health and safety regulations and other dangers brought to their attention.
13.2. The Buyer shall fully and completely indemnify the Company in respect of all claims by any person whatsoever for injury to personnel or property caused by or as a result of:
13.2.1. defects or deficiencies occasioned by personnel provided by the Buyer and
13.2.2. acts of the Companys personnel whether at the Companys or the Buyers premises.
14. Force majeure
14.1. The Company shall not be liable to the Buyer or deemed to be in breach of contract by reason of any delay in performing, or any failure to perform any of the Companys obligations in relation to the supply of Goods and/or commissioning, installation and Fitting Work, if the delay or failure was due to any cause beyond the Companys reasonable Control.
Without prejudice to the generality of the foregoing the following shall be regarded as causes beyond the Companys reasonable control:
14.1.1. acts of God, explosion, flood, fire, theft or accident.
14.1.2. war or threat of war, sabotage, civil disturbance or requisition.
14.1.3. acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any Governmental or local authority.
14.1.4. import or export regulations or embargoes.
14.1.5. strikes, lockouts, shortened working hours or other industrial actions or trade disputes (whether involving employees of the Company or those of any sub- contractor or of a third party).
14.1.6. difficulties in obtaining raw materials, labour, fuel, parts or machinery.
14.1.7. delays in transport, accidents, power failure or breakdown in machinery.
14.1.8. delay in the supply to the Company of full, final and correct technical information reasonably required by the Company in order to perform the Contract.
15. Occupiers liability
15.1. The Buyer shall comply with the provisions of the Occupiers Liabilities Act 1957 (as amended or substituted by subsequent legislation) and shall take such care as is reasonable to ensure that the Companys personnel and any other persons required by the Company to enter the premises occupied by the Buyer will be safe for the purpose for which the aforesaid persons are required to be there and the Buyer shall be liable for any death, personal injury and/or damage to personal property and Company property caused as a result of the Buyers failure to take such reasonable care and the buyer shall maintain insurance against such eventuality with a recognised insurance company and shall not do anything to invalidate the provisions of such policy.
15.2. The Buyer shall notify its staff and any other persons authorised by the Buyer to be on the premises of the presence of the Companys personnel and of the nature of the work carried out.
15.3. The Company shall not be liable for defects or deficiencies occasioned by the employees or agents of the Buyer or by personnel provided by the Buyer, or in the event that the Companys instructions were not heeded.
16. Use of product and product maintenance
16.1. Manufacturers, designers, importers or suppliers of articles for use at work have a duty to ensure, so far as reasonably practicable, that the article will be safe and without risk when properly used. An article is not regarded as being properly used if it is used without regard to any relevant information or advice relating to its use made available by the manufacturer, designer, importer or supplier.
16.2. Having regard to these provisions, the following is given as a guide to the information which is readily available to the Buyer, in order that the obligations of all concerned may be met as fully as is reasonably practicable. This information relates to those products detailed in the Companys offer / Catalogues or associated literature.
16.3. Information on the design, construction and installation of the Companys products, to ensure that so far as is reasonably practicable they are safe and without risk to health when properly used, may be found in:
16.3.1. Relevant Standards, Specifications and Codes of Practice.
16.3.2. Regulations for Electrical Installations (published by the Institution of Electrical Engineers).
16.3.3. Catalogue and product leaflets of the Company. This information may be obtained by specific request to the Company.
16.4. It is important that the products concerned should be installed, commissioned, operated and maintained by or under the supervision of competent persons in accordance with good engineering practice and the relevant:
16.4.1. Regulations for Electrical Installations (published by the Institution of Electrical Engineers).
16.4.2. Codes of Practice.
16.4.3. Statutory Requirements.
16.4.4. Instructions specifically advised by the Company and, where appropriate, with particular reference to information marked on the product.
16.5. The Buyer must take such steps as are necessary to ensure that any appropriate information relevant to the Companys products is made available by the Buyer to anyone concerned.
16.6. The Buyer shall ensure that the Goods supplied and/or assembled, commissioned, installed and fitted shall be maintained in accordance with the product information supplied by the Company and insofar as the Goods are resold the Buyer shall ensure that such information is received by all customers.
16.7. The Buyer shall inspect the product regularly and shall notify the Company upon becoming aware of or upon being notified of any defects, malfunction or deterioration in the state of the product.
17.1. Any notice required or authorised to be given hereunder shall be in writing and may be served by telephone, facsimile, cable, signed electronic mail, or 1st class letter sent to the Companys address or any other address notified for the purpose and shall be deemed to be served in the case of a cable 24 hours and in the case of a letter three days after proven despatch provided that any other mode of service shall be valid if the said notice or other communication is actually received by the addressee.
17.2. A failure to exercise or delay in exercising a right or remedy provided by these Terms and Conditions does not constitute a waiver of the right or remedy or a waiver of other rights or remedies. No single or partial exercise of the right or remedy provided by these Terms and Conditions or by law, prevents further exercise of the right or remedy or the exercise of another right or remedy.
17.3. The Buyer may not assign, transfer or subcontract or purport to assign, transfer or sub-contract a right or obligation under these terms and conditions without the prior written approval of the Company.
17.4. If any part of these Terms and Conditions shall be held invalid or unenforceable, such determination shall not effect the validity or enforceability of any remaining portion, which shall remain in full force and effect as if the offending part had never been incorporated in these Terms and Conditions.
17.5. No persons other than the Buyer and the Company shall have any right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of any Contract.
17.6. These Terms and Conditions are governed by, and shall be construed in accordance with, German law and the German courts shall have exclusive jurisdiction as regards any dispute arising out of or in connection with these Terms and Conditions.
Status: July 2013.
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