Terms and Conditions for Construction and Erection/Assembly Works MB 81 and General Terms and Conditions AGB KMA 02

Terms and Conditions for Construction and Erection/Assembly Works MB 81 (last updated: 22.06.2021, D) of KELLER HCW GmbH,
Carl-Keller-Str. 2-10 · D-49479 Ibbenbüren-Laggenbeck

(hereinafter referred to as "Seller")

Applicable for business transactions with

1. Merchants, when the contract pertains to the operation of their trade.
2. Legal entities and special funds under public law, (each hereinafter referred to as “Buyer”) including the Seller’s data protection notice (taking into account the DSGVO of the Federal Republic of Germany), which can be found at t https://www.keller.de/en/kcs/privacy/.

1. SCOPE OF APPLICATION

These terms and conditions apply to all construction and erection/assembly works unless otherwise individually agreed upon. Collateral agreements have to be confirmed in writing by the Seller.

2. PRICING

1. Unless a price is expressly agreed to be inclusive, all construction and installation/assembly work performed will be invoiced on a time and material basis at the rates in effect at the time of performance.
2. The agreed prices are exclusive of value-added tax or other taxes and duties which may incur. If applicable, the Buyer shall additionally pay to the Seller such taxes and duties at the current statutory rate.
3. Time sheets for the construction and erection/assembly personnel provided by the Seller shall be signed by the Buyer every week to certify the working times and services for construction and erection/assembly performed. These certificates serve as a basis for invoicing. The copies of such certified time sheets given to the Buyer or to the local site supervisor, as the case may be, shall serve as a basis for checking the Seller’s invoices.
4. If the construction and erection/assembly personnel are without any fault on their part hindered from working full shifts, the Buyer will nevertheless be invoiced for normal working hours.
5. In case of an interruption of the work that is not attributable to the Seller and that requires a withdrawal of the provided personnel, the costs for such interruptions will be invoiced to the Buyer.
6. Costs for board and lodging, including pocket money, shall be covered by daily allowances to be invoiced to the Buyer. With the payment of such allowances, the Seller’s personnel shall bear their own costs for board and lodging.

3. PAYMENTS

1. Unless otherwise agreed upon in writing, payments for work performed are due in full immediately upon receipt of the invoice. Withholding of payments or offsetting payments against disputed or not legally binding counterclaims are not permissible.
2. The Seller shall be entitled to invoice monthly instalments if construction or erection/assembly work is of longer duration.
3. On request, the Buyer shall pay to the Seller’s personnel cash advances for living expenses. Such advances shall be credited to the Buyer as instalments.

4. REQUIREMENTS

1. The Buyer shall prepare the construction site in such a way that the Seller is able to start with the construction works upon delivery of the necessary materials.
2. Foundations and masonry work, etc. required by general plans and foundation drawings, etc., shall be executed in good time prior to the start of the works so that erection/assembly may be carried out without any obstructions. This includes but is not limited to protection of the construction site against adverse weather conditions and the provision of the necessary auxiliary equipment.
3. Should it be necessary for reasons of unsuitable building ground to foresee more foundations than indicated on the construction drawings of the Seller, such foundations are to be built by the Buyer or at the Buyer’s expense.
4. The Buyer has to make all necessary arrangements to ensure that works with other suppliers and contractors at the construction site can be carried out efficiently and systematically according to plan.
5. The Buyer shall be responsible for any delay in starting the works resulting from inadequate preparations on the building site upon arrival of materials and machinery or resulting from the unavailability of equipment and machinery or auxiliary equipment required for assembly at the assembly site. All costs arising from such delays shall be for the account of the Buyer.

5. PARTICIPATION OF THE BUYER

1. The Buyer shall render any assistance to the Seller’s personnel that is necessary to carry out their work.
2. He will take all precautions necessary for the safety of persons and property at the erection/assembly site.
3. The Buyer shall, if any problems exist in this regard, arrange for suitable board and lodging reasonably close to the work site and medical care in case of accident or sickness.
4. In the event of accident or sickness of the construction or assembly personnel on construction and assembly sites outside the Federal Republic of Germany, the Buyer shall ensure medical care, the provision of medicines and, if necessary, accommodation in a hospital in accordance with German conditions, i.e. accommodation in the class corresponding to the 2nd class of a German hospital. The costs thereby incurred shall be for the account of the Buyer if they are not wholly or partially covered by insurance policies existing in the Federal Republic of Germany under inter-government agreements for the personnel of the Seller.

6. TECHNICAL ASSISTANCE OF THE BUYER

1. The Buyer shall, at its sole expense, provide technical support, in particular:
2. provide all auxiliary personnel required (bricklayers, carpenters, fitters, electricians and other skilled workers, and helpers) for the work on hand for the required periods. The personnel must follow the instructions of the erection/assembly supervisor. The Seller disclaims all liability for the auxiliary personnel.
3. carry out all earthmoving, construction, concreting and scaffolding work including procurement of all required materials;
4. provide all necessary equipment including heavy equipment (e.g. mobile cranes, hoists and compressors) and all necessary supplies (e.g. scaffolding timber, wedges, supports, cement, cleaning and sealing materials, lubricants, fuels, driving ropes and belts);
5. provide heating, lighting, energy and water including the necessary connections;
6. transport all erection/assembly components to the erection/assembly site, protect the site and materials against harmful influences of all kinds and maintain the site in clean condition;
7. provide erection/assembly personnel with suitable recreation and working rooms (equipped with heating/air conditioning, lighting, washing facilities and sanitation) and first aid facilities;
8. provide all materials and take all other action required for the adjustment of the equipment delivered and for a test run, If any, agreed upon in the contract. If the Buyer does not fulfil his obligations, the Seller shall, after setting a deadline, be entitled but not obliged to carry out the obligations of the Buyer in his place and at the expense of the Buyer. Furthermore, the legal rights and entitlements of the Seller will not be affected.

7. SAFETY REGULATIONS

1. The Buyer will take all measures required to guarantee the health and safety of the Seller’s personnel during their stay at the building site. The costs shall be borne by the Buyer. This applies in particular when the physical integrity is endangered due to the security situation, whether it is the general security situation around the place of erection/assembly or at the place of erection/assembly itself. The Seller will present to the Buyer any reservations concerning the security measures taken. If the Buyer does not react within 5 calendar days after having received such written information or if the measures taken are not sufficient, the Seller is entitled to withdraw his personnel from the building site. All obligations of the Seller shall be considered suspended for the duration of the absence of the personnel of the Buyer. The Buyer shall bear the costs for such a suspension of work.
2. The personnel of the Seller are covered by social security and accident insurance in the Federal Republic of Germany. The Buyer is responsible for social security and accident insurance for auxiliary personnel provided by him. The Buyer is also responsible for the observance of the safety regulations by such personnel.

8. DESIGN FREEZE AND TRANSFER OF DESIGN

If the scope of delivery is individualised for the respective order (i.e. not merely commercial goods), the Seller and the Buyer shall determine the final scope of delivery within 60 days after the contract becomes effective by both parties signing a specification sheet, an interface drawing and a system overview plan (“Design Freeze”). The signature under these documents may not be unreasonably withheld by the Buyer. He is in default of acceptance when the documents presented by the Seller correspond in their content to the specifications of the already signed contract. In the case of an order with an individualised scope of delivery (i.e. no mere commercial goods) it also applies that at a certain point of progress of the project the seller simultaneously sends a number of drawings to the buyer describing the subject matter of the contract to be executed or parts thereof. This usually takes place after the start of the contract but before assembly and commissioning and is called the moment of “Transfer of Design”.

9. CONSTRUCTION AND ERECTION/ASSEMBLY SCHEDULE AND RISK ASSUMPTION

1. The erection/assembly and commissioning schedule has been met if the erection/assembly work is ready for acceptance by the Buyer or, if stipulated in the contract, for the test not later than upon expiry of the scheduled erection/assembly period.
2. If the work is delayed by reason of force majeure, in particular strike or circumstances for which the Seller is not responsible, this agreed schedule shall be extended by a reasonable period. This shall also apply if such circumstances occur when KELLER is already in default. Costs incurred by such delay shall be for the account of the Buyer.
3. If prior to the acceptance by the Buyer and without any fault of the Seller the erection/assembly work is lost or damaged in whole or in part, the Seller shall be entitled to the erection/assembly price less the saved expenses. The same shall apply if it is impossible to carry out the erection/assembly due to reasons for which the Seller is not responsible.
4. The Buyer may request a repetition of the erection/assembly work if and insofar as this is reasonable for the Seller, particularly in consideration of his other contractual obligations. The Buyer shall remunerate the Seller again for the reperformance at the rates in effect at the time of reperformance.

10. ACCEPTANCE

1. The Buyer shall accept the work upon receipt of its notice of completion and upon completion of a test run of the erected/assembled equipment if such a test run was agreed upon in the contract. Unless otherwise agreed, the test run shall take place within one work shift. If the agreed output of the reference size is achieved during the test run, the works are in conformity with the contract and the complete scope of supply is accepted.
2. If the work is found to be not in conformity with the contract, the Seller shall remedy the defect at his own expense. This shall not apply if the defect is immaterial to the Buyer’s interests or if it is due to a circumstance attributable to the Buyer. If an immaterial defect exists, the Buyer shall not be entitled to refuse acceptance if the Seller expressly recognises his obligation to remedy the defect.
3. Should acceptance be delayed without the fault of the Seller, the acceptance shall be considered granted after a period of two weeks following the notification of completion of the work, if the Seller has referred to the legal consequences in his notification.
4. The liability of the Seller for apparent defects shall expire upon acceptance, insofar as the Buyer has not reserved his right to assert a claim for a certain defect.

11. WARRANTY

The Seller shall be held liable in accordance with the regulations of clause 8 of the General Terms and Conditions for defects in the works carried out under his deliveries and services caused by the personnel of the Seller in such a way that defects in the work of the personnel of the Seller will be remedied at his own expense. The Seller shall not be held liable if the defect is irrelevant to the Buyer’s interests or if it is based on circumstances for which the Buyer is to be held responsible.

12. LIMITATION OF LIABILITY

As far as such an exclusion of claims and rights is permitted by law, the Buyer shall have no right to assert claims against the Seller, irrespective of their legal grounds, other than those conceded by applying the above provisions, in particular no right to assert a claim for damages, whether for non-contractual acts or claims due to possible advantages in relation to the construction or erection/assembly works. This shall not apply to claims based on intent or gross negligence. The above liability for non-conformity with the contract requirements is made in lieu of all other liabilities or warranties, expressed or implied (explicitly or implicitly), including but not limited to any implied warranty of merchantability and/or fitness for any particular purpose and is made in lieu of all other obligations or liabilities on the part of the Seller of any nature whatsoever.

13. LIABILITY OF THE BUYER

Outward and return freight charges for tools shall be for the account of the Buyer. Damage to and loss of erection/assembly tools and other aids, etc., provided by the Seller or the Buyer and personal property of the construction and erection/assembly personnel on the construction or erection/assembly site shall be at the risk of the Buyer. The Buyer shall provide a suitable lockable room for the storage of tools, technical documents, measuring instruments, etc., of the construction and erection assembly personnel.

14. JURISDICTION

Any dispute or claim arising from or in connection with this contract shall be referred to the competent court of jurisdiction at the head office of the Seller. The Seller may also appeal to the competent court having jurisdiction over the Buyer.