General Terms & Conditions for supplies and services, installation work, commissioning, repairs and servicing Carrier Kältetechnik Deutschland GmbH (hereinafter referred to as “Carrier”)
All supplies and services are subject to these General Business Conditions and to any individual contractual agreements. Customer terms and conditions shall not apply even if Carrier does not explicitly reject them.
Failing written acknowledgment by Carrier, an order becomes effective upon the arrival of Carrier service staff at the place of performance of the work and services.
Failing written arrangements to the contrary, the respective standard rates for material and time valid at the time of contracting shall apply. Customer shall be notified of such rates on request.
2. Supplies and services / Impediments
Carrier’s contractual obligations are subject to the confirmation of an order by Carrier. Particulars contained in an offer or contract documents (e.g. measurements, weights, capacities, consumption) shall be regarded as mere approximates subject to tolerances and do not constitute a guarantee of condition.
Specifications of the products shall be stated in the contract. They are not guaranteed, unless otherwise agreed in writing.
Carrier reserves the rights of ownership and copyright in respect of cost estimates, drawings and other data and documents submitted in either hardcopy or electronic form. Such data or documents shall not be duplicated or made available or disclosed to any third party without the written approval of Carrier.
The scope of Carrier supplies and services does not extend to the creation of structural and operational conditions for the use of refrigeration equipment, specifically electrical wiring and connections, cooling water and drip water piping and installation, ventilation, foundations, penetrations and other structural and modification work, operations-related acceptances/permits and the conditions and requirements to be met by the operator, unless such supplies, work and services are explicitly identified as constituent parts of the offer or order confirmation.
In the event that Carrier, on grounds for which Carrier is not answerable, is unable to complete any ordered work and services, such work and services shall be invoiced to Customer on a time and material basis. The same shall apply to any futile travel by Carrier staff to the site of the ordered work or services or to interruptions in the execution of the work.
3. Cost estimates / Quotations
In the case of work invoiced by expense that can be clearly estimated in its extent and duration, Customer shall be entitled to request a cost estimate or quotation. Such cost estimates/quotations must be submitted by Carrier in writing. Carrier personnel employed at the place of performance of the work are not authorized to issue cost estimates/quotations. Any particulars given by them in this regard shall not be binding either for Carrier or for Customer.
4. Prices and payments
Unless otherwise agreed, the prices stated for supplies shall apply ex works, excluding packing, installation and commissioning, without value-added tax.
Customer shall have a right to withhold payments or a right of offset against counterclaims only where such counterclaims are undisputed or are res judicata.
5. Retention of title
Carrier retains title to supplies pending receipt of all payments arising from the business relationship.
Customer may not dispose of the delivered item by sale, pledge or assignment by way of security. Carrier shall be informed at once of any seizure or confiscation or other disposal by third parties.
In the event that Customer is in violation of the contract, specifically in the case of default in payment, Carrier shall be entitled, following a reminder, to recover possession of the supplies, and Customer shall be obliged to surrender same. Assertion of the retention of title and seizure of the supplies by Carrier shall not constitute withdrawal from the contract.
An application for opening of insolvency proceedings shall entitle Carrier to withdraw from the contract and demand the immediate return of the supplies.
6. Delivery date, execution and completion times
Failing other arrangements, delivery dates shall be non-binding approximations. Adherence thereto by Carrier presumes that all commercial and technical issues have been clarified as between the contracting parties, and that Customer has performed all obligations incumbent on Customer, e.g. procurement of necessary official certificates or approvals, or that a payment on account has been made. Otherwise, the delivery time shall be extended appropriately. This shall not apply where Carrier is answerable for the delay.
Times or dates of delivery shall apply only to the actual delivery even if Carrier has agreed to install the delivered item. Any times or dates for completions/commissioning shall be subject to separate agreement. Accordingly, a binding completion term is deemed to have been observed if the contractually agreed work and services have been substantially completed and notice thereof has been given to Customer. Any test or trialling phase shall have no bearing thereon.
In the event that non-observance of the delivery term is due to force majeure, industrial action or other events beyond Carrier control, the delivery term shall be extended appropriately. This shall also apply wherever the events concern a subcontractor. Carrier shall inform Customer as soon as possible of the start and the end of any such circumstances.
If shipment is delayed at the request of Customer, Customer shall bear a lump sum charge of 0.5 % of the invoice amount per month for storage, beginning one month after notification of readiness for shipment. Carrier reserves the right to charge higher storage costs.
7. Passage of risk, Acceptance
Risk shall pass to Customer upon dispatch of the supplies also in the event that part deliveries are made.
Customer shall be obliged to accept work and services under a contract for work and services as soon as Customer is notified by Carrier of the completion of the work and services. Acceptance of repair services shall be confirmed by signature of Customer on the work report. Regardless of the signature on the work report, the repaired item shall be deemed to have been accepted upon commencement of use following completion of repairs.
8. Liability for material defects, limitation of action
Carrier shall be liable for a period of 12 months (limitation period) in respect of material defects in delivered items / work and services existing at the time of transfer of risk/acceptance.
In the event that any necessary installation/assembly or commissioning is not included in the scope of supply of Carrier, the term shall commence at the latest upon completed delivery to Customer.
For delivered replacement parts, the limitation period shall commence 12 months after transfer of risk. For parts installed in the course of any rectification of defects, the limitation period shall depend on the limitation period of the delivered item. After a rectification, Carrier shall have the right to acquire free of charge possession and property on dismantled parts.
Excluded from the liability for material defects are all parts that are subject to wear or tear and any cases of improper use.
9. Customer assistance
Customer shall take any special measures required to protect persons and property at the place of performance (e.g. securing and maintaining unobstructed access or escape routes). Where Carrier is charged with performing work during current operations at Customer facilities, Customer shall share responsibility for securing the site against unauthorized access. Customer shall inform the Carrier employee in charge about existing specific safety concerns insofar as these are of importance for the Carrier personnel employed at the site.
In the event that any parts of the object on which the work is performed are damaged due to the fault of Carrier, Carrier shall at its discretion either repair or replace said parts at its own expense.
Any claims of Customer based on damage or loss other than that occurring to the supplies or services themselves (”consequential loss“) are excluded, with the following exceptions:
Carrier is liable
- in the case of wilful action or gross negligence
- in the case of culpable injury to life, limb, health,
- in the case of defects wilfully concealed by Carrier or whose absence was expressly guaranteed,
- wherever liability exists under product liability laws for personal injury or material damage to privately used items.
In the event of a culpable violation of material contractual duties, Carrier shall also be liable for slight negligence. In such case, however, liability shall be limited to losses such as are typical of the contract and reasonably foreseeable. Any liability on the part of Carrier for consequential loss shall be limited at all events to 10% of the contract value. Liability for purely financial loss, e.g. loss of profits or interruption of operations, is excluded.
11. Applicable law, Place of jurisdiction
All legal relations between Carrier and Customer shall be subject solely to the law of the Federal Republic of Germany, which is authoritative for legal relations as between domestic parties.
Place of jurisdiction shall be the court having jurisdiction for the Carrier registered office. However, Carrier shall be entitled to bring an action at Customer’s principal place of business.
(status April 2014)