General Terms and Conditions
of Franke Industrieofen-Service GmbH
(hereinafter “FIOS GmbH”)
Therewith, all previous GTC versions by FIOS GmbH shall become void. Existing GTC shall be replaced by this GTC.
All contractually specified and ancillary performances, as well as other services by the FIOS GmbH shall be conducted under the following conditions, exclusively. Divergent conditions of the contracting party (hereinafter “client”) are not valid, if the client does not reject these GTC expressly in written form. Rejection alone does not implement a substitution. In this case, if not agreed on otherwise German law applies.
If the versions of these GTC in English or any other language diverge in substance or wording, the German version (AGB) prevails concerning content and interpretation.
2.1. The FIOS GmbH is obligated to accomplish all performances carefully according to contractual agreements. The FIOS GmbH shall use qualified personnel and appropriate equipment only. Any amendments to both the quote or to the performance contract shall be in writing only and be agreed on additionally by all parties.
2.2. The FIOS GmbH personnel are not entitled to accept additional appointments, which are not part of the contract, without previous agreement of the FIOS GmbH management.
3. Scope of Performances
The scope of performances is determined by a written confirmation order, submitted by the FIOS GmbH. Beyond that, the FIOS GmbH is authorized to make changes on basis of the underlying drawings and outlines, particularly with regard to improvements, if these are reasonable for the client and are connected to the provision of performance by the FIOS GmbH. All documents generated by the FIOS GmbH and all rights regarding in or on these documents remain property of FIOS GmbH. Third parties are not allowed to have access to these documents neither in whole nor in part without permission by the FIOS GmbH.
4. Travel- and Extra Charges
4.1. Travel time is considered as working hours and is recompensed by the client on the same conditions. The same applies for delays on the construction site not caused by the FIOS GmbH.
4.2. The FIOS GmbH will prepay for any arising travel expenses, e.g. flight, hotel, commuting costs, visa fees, inoculations etc. These costs have to be refunded by the client. During assignments abroad, the client shall pay an allowance per expenses to the FIOS-personnel per person and day according to the confirmation order.
4.3. Outside of the Federal Republic of Germany, the client shall pay all arising taxes, tolls and applicable duties, and shall apply for necessary authorisations and documents and permits at the responsible authorities on behalf and in its own name and at its own expenses. The same is applicable for all export costs out of Germany. The client accounts for any possible delays and/or waiting periods due to failed or missing or delayed authorisation, documents, permits etc..
4.4. After each one (1) month stay in the country of operation, the FIOS-personnel is entitled for a journey at home. All expenses therefore are born by the client. If the stay does not exceed one month, the FIOS-personnel is entitled for a proportionate refund therefore after fourteen (14) days of working abroad.
5. Tools, Devices, Construction site Material
The client receives a complete list of tools, construction site material and devices (equipment) from the FIOS GmbH, which the FIOS GmbH will convey to the construction site, and return after closing of performance. Regarding the equipment the client is responsible as follows at its own expenses:
– All construction site equipment has to have custom clearance in time and shall be at the construction site by the time the FIOS-personnel arrive;
– The entire equipment has to be protected and covered by insurance adequately against theft, damages or influences of weather.
– The re-import of the equipment to Germany shall proceed immediately after closing the performance. The client shall be liable for missing items or damages to any of the equipment for up to the full insurance value specified by the FIOS GmbH. In case the re-import should not be realised within two weeks after conclusion of performance, the FIOS GmbH is entitled to charge the client the complete value of the construction site equipment.
6. Intermediation obligations of the client
6.1. The client is obliged to take all actions necessary to ensure that the performance can begin in time and be accomplished without obstacles or interruption, considering all safety measurements for both FIOS-GmbH personnel and equipment.
6.2. The client shall provide for a punctual and sufficient provision of all qualified specialists needed for completion of the work, e.g. autogenous and electrical welder, bricklayer and other specialized personnel required, including all needed tools and devices. The assessment of the mentioned personnel should take place in agreement with the FIOS GmbH or persons assigned by the FIOS GmbH. If concerned with provision of the performance by the FIOS GmbH, these personnel as well as their supervisors have to observe the instruction of the FIOS-personnel responsible. However, they remain in employment relationship with the client and under the client’s insurance coverage and responsibility. If needed eligible interpreters are to be provided and reimbursed by the client. The FIOS GmbH is entitled to reject unqualified personnel. Such persons have to be replaced at the client’s expense.
6.3. The client shall ensure the accomplishment of all required preliminary works and deliveries, as well as any services performed by other industrial segments, including all equipment and material needed.
6.4. The client shall supply all consumable materials and other required supplies necessary for provision of performance, i.e. fuels, staging equipment, lifting devices at the clients own expenses. Provided equipment, items and material must be in proper condition and meet the safety regulations.
6.5. The client shall supply motive power and water, including all necessary connections up to the point of usage, as well as heating, general lighting and, where required, air conditioning and ventilation.
6.6. The client shall be responsible for the supply of all necessary protective clothing and safety devices for the FIOS-personnel as well as monitoring and renewal or replacing of the same where required. If not agreed on separately, the client has to accommodate for suitable means of transportation available to FIOS-GmbH personnel, tools, material and equipment at the client’s expense.
6.7. Before the start of work, the client shall make available and disclose all needed data, drawings and static data without being explicitly requested.
6.8. The client shall arrange for all permission needed by the FIOS GmbH for import and export of equipment, tools, vehicles and materials.
6.9. Furthermore, the client shall ensure unhindered and safe access to all work sites.
6.10. The FIOS-GmbH is not liable for delays due to violation of obligations by the client regarding responsibilities stated within clause 5 and/or 6.
7. Accommodation and Circumstances of Performance
7.1. The client ensures appropriate catering and accommodation of the FIOS-personnel, further the client shall be responsible for sufficient storage capacities, working space, sanitary facilities and recreational areas. The client shall arrange for single rooms in hotels, bed and breakfast places or accommodations of equal quality.
7.2. All facilities have to be constituted in a way, that personal belongings of FIOS-personnel is protected against theft, damages, destruction and other harmful effects. These facilities have to be dry, with heating, equipped with an adequate ventilation system, sufficiently lit and weather protected. Any possible health disease to the FIOS-personnel has to be avoided. The sanitary facilities shall be kept in clean and functional conditions. In hot and tropical environments, accommodations are to be equipped with working air conditioning and refrigerator.
8. Accident protection
The client shall meet all mandatory precautions and legal measures effective at the country of assignment for protection against accidents at workplaces. The client shall inform the FIOS-personnel in writing about all valid safety regulations. The FIOS-personnel on the other hand, is obliged to observe the regulation for prevention of accidents by the governmental safety organization in charge (Deutsche Berufsgenossenschaft). FIOS-GmbH personnel are entitled to deny the provision of performance if the accident prevention regulations are not met. The client shall inform the FIOS GmbH immediately about high-risk potentials.
9. Support of FIOS-Personnel
9.1. If requested by the FIOS GmbH, the client shall ensure all necessary entry clearances, residence and working permits for the FIOS-personnel at the clients costs. The client shall inform the FIOS-personnel about all obligations concerning local authorities (e.g. registration etc.) in time and shall support communication between them and the authorities. Furthermore, the client shall provide for necessary certificates or permits, which allow journeys home as well as to carry the personal belongings of the FIOS-personnel.
9.2. In case of accident and medical conditions, the client shall ensure and arrange for access to immediate first aid and medical aid at the clients own expenses, as well as for suitable means of transfer to a hospital, which operates according to German standards.
10. Change of Personnel
The FIOS GmbH shall be entitled to replace its own personnel with equal qualified personnel during operating process of the performance at the company’s own expense.
In case the FIOS GmbH falls behind with its performances, without the client or force majeure being responsible for such a delay, the client is entitled to terminate the contract only, if the FIOS GmbH does not meet an appropriate set period of grace. Any claims for damages caused by delay or non-performance are excluded, unless the client is able to proof a gross negligence or wilful intent breach of contract by the FIOS GmbH. In case of deviant compulsory legal regulations provisions, claims for damages are given without deliberate or gross breach of contract then these claims are limited to the contracted performances only. Thus, consequential or successive, indirect or direct harms, losses or claims caused by the delay are excluded.
12. Termination of Contract without notice
In case the client infringes one or more obligations stated in clauses 5, 6, 7, 8, 9 or 11, or if the working process is delayed by reasons behind the control of the FIOS GmbH in a way that makes a continuation of the performance by the FIOS-GmbH unacceptable, then the FIOS GmbH is entitled to terminate the contract without further notice. In these cases, the client is obliged to refund all performances by the FIOS GmbH up to this time according to the contractual conditions. The same applies in cases of force majeure, e. g. fires, flooding, earthquakes, mobilization, war, riots, labour disputes, restrictions in foreign exchange transfers, as well as all federal or governmental actions and decisions causing delays in working progress.v
13. Final Inspection
13.1. A final inspection only takes place through a written acceptance certificate. The FIOS GmbH shall announce to the client by a written notice at least twenty four (24) hours prior to completion of the standby for the final inspection. Within twelve (12) hours after that announcement the final inspection has to be effected by the contract parties. The final inspection shall not be denied merely because of defects, which do affect the functional operability not at all or only marginally. All deficiencies in the performance have to be defined in the acceptance certificate. The removal of defects shall be negotiated right away or afterwards in the sense of rectification of defects or repeating of the performance. A refusal of the performances is excluded.
13.2. If the final inspection does not take place within the 24-hour time limit after announcement of standby for acceptance, not caused by the FIOS GmbH, the final inspection is considered to have been taken place with expiration of the mentioned 12 hours period under 13.1.
13.3. The client is obliged to certify accomplished performance of FIOS-personnel on the submitted acceptance certificate. Partial acceptances according to construction progress are agreed explicitly. If the client does not confirm the acceptance certificate or does not so in time, the recordings of FIOS-personnel are considered as basis for invoicing.
13.4. In all cases, the final inspection is considered to have been accomplished, as soon as the client takes the object in question in possession or into use or commissions it.
13.5. The client bears the costs of the final inspection, including but not limited to energy, compressed air, cooling air, cooling water, and commodities.
14.1. The performance shall be invoiced after final inspection, unless advance payments are agreed on. The amount of the invoice is subject to the written binding order submitted by the FIOS GmbH, solely. Additional or shortened performances shall be considered as agreed only, if written in an amendment to the contract beforehand, signed by FIOS-GmbH.
14.2. The client is not entitled to reduce the value assuming cash discounts or other deductions. If not stated otherwise in the contract, the payment is to be made within thirty (30) days after the date of the invoice and the agreed currency shall be Euro. In case of other local currencies, the official exchange rate of the European Central Bank at the date of invoice is applicable.
15.1. The FIOS GmbH issues a warranty for proper conducting of the performance for twelve months following the date of passage of risk and use, or, if agreed on, after the final inspection as stated in clause 13.
15.2. During the period of warranty, detected and, in accordance with clause 15.4., reported defects, shall be remedied by the FIOS GmbH free of charge by rectification of the defect or by re-performing of the performances. The warranty period for the rectified or reperformed performance shall be six months after final inspection of this performance. However, the warranty therefore doesn´t expire before the end of the warranty period, stated in clause 15.1.
15.3. The warranty does not apply to the quality and suitability of devices and materials provided by the client. In addition, warranty does not include performances conducted by the FIOS-personnel, which have not been subject of the contract between the client and the FIOS GmbH, and therefore have been accomplished without authorisation. The FIOS GmbH does not warrant for faulty service performed by personnel provided by the client unless the client proofs defects or lack due to misconduct or faulty supervision by the FIOS GmbH. The warranty does not extend to wear and tear, for damages after passage of risk or inspection due to incorrect or careless usage as well as excessive operational demands. The same applies for defects caused by unsuitable operational equipment or devices, unsatisfactory construction work, unsuitable building ground, and other such influences, which are not required according to contract.
15.4. The client shall notify the FIOS GmbH in writing about defects immediately after their detection. If the client fails to do so, the FIOS GmbH’s warranty is excluded for these defects.
15.5. The FIOS GmbH is to be granted an appropriate period to investigate and remedy these defects. In case the rectification of deficiency should not be appropriate or only achievable with disproportionately high expenses, the client is entitled to withdraw from the contract totally or in part. This also applies if the FIOS GmbH fails to meet period of grace twice without remedying the deficiency. If the client withdraws from the contract partially, the FIOS GmbH shall be reimbursed of the remuneration, corresponding to the executed performances. In this case, a final inspection shall be conducted at the current performance level according to clause 13.
15.6. Further claims of the client against the FIOS GmbH due to insufficient performances are expressively excluded, in particular consequential and/or indirect damages, like loss of profit, loss of production or business interruption.
16.1. If not stated otherwise in clauses 13 or 15, the FIOS GmbH shall be liable to the client for all caused damages to work in progress for up to an amount of 1,000,000 € for each case of damage. The FIOS GmbH shall not be liable for loss of production, business interruption, and/or loss of profit. In case of personal injury or physical damage, the FIOS GmbH shall be held liable for up to 5,000,000 € for each case of damage within the scope of insurance coverage. However the continuation of offence applies to the event causing damage.
16.2. The FIOS GmbH expressively excluded the liability for performances conducted either by its own personnel, or by other auxiliary persons, if those performances are not subject of the contract between the parties, or if the client has initiated these performances without the FIOS GmbH approval.
16.3. All further liabilities of the FIOS GmbH and its auxiliary persons towards the client and the client’s personnel are excluded. This does not apply, if due to law the liability could not be excluded.
17. Requirement of a written form
All contractual agreements or amendments shall be in writing only to obtain effectiveness. The same applies to any change of this requirement itself.
In case of any court decision of invalidity in part or total of the contract and this GTCs all other provisions hereunder shall remain valid. Any provision, which is declared invalid by a court, shall replaced by a term or condition that approximates in aim and purpose and serves the commercial purpose of the original most closely.
19. Law and Jurisdiction
All claims of and arising from the performance of the FIOS GmbH shall be subject to the material law of the Federal Republic of Germany. The UN Convention on Contracts for International Sale of Goods and all thereon referring law, regulations or provisions are expressly excluded. The place of performance is agreed by the registered office of the FIOS GmbH. Exclusive jurisdiction for all disputes and claims, arising directly or indirectly out of a contract with the FIOS GmbH shall be the district court of Dresden.