General Terms and Conditions for Installation, Supervision, Training and Related Services
- General and Validity
- All repair work and installation, supervision, training and other services as well as maintenance work performed by BRACE GmbH (hereinafter called BRACE) are to be carried out in accordance with the following conditions.
- These terms and conditions apply to all services provided by BRACE with respect to installation, commissioning, acceptance, maintenance, servicing, repairs and dismantling of machines and plants. Other business conditions are binding only if agreed individually. Any verbal agreements supplementary to the contract and/or these terms and conditions with regard to any installation or other services, as well as any changes must be confirmed in writing by BRACE. The supply of any BRACE machines and equipment is subject to our general terms and conditions for the supply of machines, plants and accessories.
- BRACE warrants the problem-free function of all installations delivered by BRACE only if the installation work was performed by a BRACE installation engineer or by one of our authorised representatives.
- In the event that BRACE installation engineers, after prior agreement with BRACE, are enlisted to carry out additional work required in connection with the installation of our plants, BRACE can not accept any liability for such work.
- These terms and conditions also apply to all future business dealings between BRACE and the customer.
- Installation Work Rates
- Installation rates, travel expenses, living expenses and supplementary charges are generally calculated ex works Karlstein.
- Normal working hours: -see Appendix -. Applicable public holidays are the paid public holidays of the Federal Republic of Germany and the Free State of Bavaria.
- Work that involves overtime and/or working on Sundays will only be permitted in urgent cases and upon specific request of the customer.
- Hourly rates, including social charges: -see below-
- Surcharges: -see below-
- Any taxes or similar fiscal charges, in particular installation wages or living expenses, incurred as a result of installation work carried out at installation sites abroad are to be borne by the customer.
- A surcharge will be payable for work performed under particularly difficult, dirty, aggravating or dangerous circumstances. The amount due in this respect is to be agreed between BRACE and the customer.
- Travelling Expenses
- The travelling expenses of the installation staff (including the costs of transport and transport insurance for their personal luggage and tools that are brought along too) will be invoiced regularly. Also included in the travelling expenses are the standard home trips during the installation period as well as journeys at Easter and Christmas.
- The necessary time spent travelling and waiting will be calculated as working time, without surcharges.
- Costs for the use of public transport are generally invoiced.
- If the customer provides flight tickets, BRACE reserves the right to decline to travel with certain airlines.
- If any BRACE staff uses his private motor car or a service vehicle for travel, the driven kilometers will be the basis for the calculation of travelling expenses. Kilometer rates -see below-.
- If any service personnel is unable to stay in accommodation near the installation site, the travelling expenses between his accommodation and the installation site and the time spent travelling (without surcharges) will be invoiced. Travelling hours are regarded as working hours.
- Living Expenses
- We will invoice living expenses for food and lodging for each calendar day that any BRACE personnel is absent from BRACE, incl. Sundays and public holidays (see below).
- The customer must ensure that suitable accommodation with shower and WC (Western European standards) is provided.
- The amount calculated for living expenses is reduced by:
- 25 % in case of free accommodation.
- 50 % in case of adequate free food.
- 75 % in case of free accommodation and free food.
- If the installation site is located in a place where it is impossible for BRACE staff to find adequate accommodation at the agreed rate of daily living expenses (e.g. in spa towns, large cities etc.), the rate of living expenses increases by the additional costs.
- BRACE reserves the right to adjust hourly rates and the level of living expenses accordingly in the event of any changes. Additional costs incurred due to customer-specified changes shall be invoiced to the customer.
- All amounts stated/calculated are net prices and without VAT.
- BRACE installation and service invoices are payable within 30 days of receipt, without deduction. In the event of failure to pay on the due date, BRACE shall be entitled to default interest due to late payment as prescribed by law.
- If BRACE is made aware of circumstances that cast doubt on the creditworthiness of the customer, BRACE shall be entitled to request surety in the form of a bank guarantee or withdraw from, or terminate, the agreement.
- Preliminary work required prior to installation
- If the installation work is to include personnel from the customer company (by agreement) they can be given the appropriate instructions and training at BRACE. The customer guarantees the quality of said personnel with regard to qualifications and motivation and gives express assurance that the same personnel will subsequently be available for the installation in question. If the customer is unable to provide personnel on the agreed training dates, the training course is still deemed to have taken place and entitles BRACE to decline to perform the installation. Any repetition of the course shall be invoiced to the customer and is usually subject to considerable scheduling difficulties. The deadlines for commissioning, acceptance, etc. shall be extended accordingly due to these delays for which the customer is responsible.
- Tools, Equipment and Consumable Goods
- Tools and Equipment:
- The stated installation rates include – provided that there is no other specific agreement - the provision of standard tools including welding and cutting tools and their accessories, as well as equipment and portable machinery (e.g. a hand drill, welding converter, and pipe cutter). Heavy lifting devices and stationary machinery will be invoiced separately.
- Consumable goods will be invoiced according to the amount used.
- All parts of the installation service remain the property of BRACE until payment has been effected irrevocably, unconditionally and in full. This reservation of title also applies to any future claims from BRACE against the customer in connection with the business relationship. For as long as the reservation of title remains in force, the customer is not entitled to encumber the subject matter of the contract with a security interest (e.g. ownership by way of security, pledge, mortgage, land charge, etc.) or sell it on. If "reservation of title" is not recognized as a means of providing security at the location where the subject matter of the contract is located, the means of providing security that comes closest to the meaning of "reservation of title" under applicable law at that location, or represents the typical means of security under that law (e.g. "pledge" or "security interest, attached and perfected") should be agreed. The customer is obliged to cooperate, particularly in respect of the provision of declarations of intention of the sort which may be required in accordance with applicable law at the respective location, for the agreement and justification of a means of security of this type.
- If the reservation of title should be extinguished, in particular as a result of selling on, union, changing into a new form, etc., the reservation of title will transfer to the new object or the resultant customer's claim against a third party. The customer retains the right to collect the claim to which BRACE's extended reservation of ownership relates for as along the customer is not in arrears with payment. If the goods subject to reservation of title should be processed or transformed, joined or mixed with other goods by the customer, BRACE will be entitled to a proportion of the value of the new object commensurate with the invoice value of the goods subject to reservation of title relative to the invoice value of the other goods resulting from processing or transformation.
- In order to provide security for all claims made against the customer by BRACE, the customer transfers and assigns to BRACE all claims and entitlements accruing to the customer against a third party from the association of the subject matter of this contract with a property. BRACE herewith accepts the transfer and assignment.
- If the value of the security provided exceeds the claims by BRACE against the customer by more than 20 %, BRACE will release security on request from the customer if there is a case to make of excess security. BRACE will decide which security can be released.
- If the customer should fall into arrears with payments, BRACE retains the absolute right to enter the customer's building site/production plant and business premises for the purposes of dismantling and removing the subject matter of the contract.
- If the customer is in breach of the contract, particularly in terms of the improper handling of the delivered subject matter of the contract or payment arrears, BRACE is entitled, after giving prior notice, to demand the return of the subject matter of the contract. The demand for the return of the subject matter of the contract will not constitute withdrawal from the contract, unless BRACE has expressly declared its intention to withdraw from the contract. Until all claims by BRACE have been fully settled, the customer is required to insure the delivered goods against the risk of loss or deterioration at his own expense.
- The customer is required to inform BRACE immediately of any interference by third parties in the rights of BRACE.
- Tools and Equipment:
- Obligations of the Customer
- The customer must provide the installation staff with suitable, theft-proof working and recreation rooms at the installation site which are equipped with heating, sanitary installations and first aid equipment. Furthermore, a dry, lockable storage room for tools and installation material must be provided in the direct vicinity of the installation site.
- If, through no fault of BRACE, tools or equipment provided by BRACE are damaged in transit or at the installation site, or if they are lost, the customer undertakes to replace them or make good the damage. This excludes any damage incurred due to normal wear and tear.
- Additionally, the customer is obliged to provide the following technical assistance at his own cost and risk:
- a) A sufficient number of personnel for the amount of time necessary. These personnel must also be prepared to work any overtime necessary. Extra work for the BRACE staff resulting from a lack of customer personnel is generally invoiced. The customer is obliged to provide insurance of these persons with the appropriate professional association as well as disability and health insurance.
- b) The necessary energy and water supplies in a sufficient amount, at positions stipulated by BRACE personnel.
- c) The carrying out of all excavation, building, foundation, console and scaffolding work, the propping and construction of ceilings and wall openings for the installation of electricity supplies and other necessary work including the provision of all necessary materials.
- d) The provision of the necessary devices, e.g. fork-lift truck, heavy lifting devices, fuel, welding and protective gases, grease, heating, lighting and transport.
- e) Any necessary platforms, walkways or bridges leading to existing installations.
- f) The use of the customer's workshop at any time.
- g) Free provision of telephone and fax equipment and internet access.
- h) Provision of materials (e.g. energy and raw materials) and fulfilment of all tasks necessary for installation and the execution of any trials as specified in the contract.
- The customer must name a contact person to BRACE who is responsible for the installation.
- The customer undertakes to carefully read and observe BRACE’s operating instructions, instructions for use and maintenance instructions.
- Waiting Time
- If the start of the installation work and/or its continuation is delayed as a result of the customer having failed to fulfil his obligations, including the preparations for the installation, the time spent waiting by BRACE staff will be invoiced to the customer as hours worked. BRACE staff may not work for other persons or themselves during the time which is spent waiting, and during the remainder of the installation work.
- Design Alterations to the BRACE's Machines
- Alterations to the design and function of the BRACE machines may only be made during the installation period after consultation with BRACE and after having received BRACE's permission. If this is not the case, any warranties are excluded.
- Exchange of Installation Personnel
- BRACE reserves the right to exchange its installation staff at any time at its own expense. If personnel have to be exchanged due to reasons beyond the control of BRACE the costs of doing so will be invoiced to the customer.
- Installation Time
- The estimated installation time is based on the installation offer provided by BRACE unless expressly agreed otherwise. The installation time is complied with if, in said period, the installation is completed and is ready for acceptance by the customer and, if so specified in the agreement, the installation is ready for trial operation.
- The installation time is extended accordingly in the case of industrial action which is taken, especially in the form of strikes and lock-outs as well as in the case of any unforeseeable obstacles which are beyond BRACE's control, in as far as these obstacles have considerable influence upon the completion of the installation work. BRACE will not be liable for the mentioned circumstances if they occur during an existing delay.
- Compliance with the installation time is conditional upon fulfilment of the contractual obligations by the customer. These include provision of all necessary plans, documents, licences, releases, permits and receipt of all agreed payments.
- If a date for the completion of the installation work was agreed, it is up to BRACE to work the required amount of overtime.
- If the customer suffers loss or damage due to a delay in installation attributable to BRACE is responsible, the customer shall be entitled, to the exclusion of any further claims or rights for delay, to claim compensation for loss occasioned by delay. This compensation – after a grace period of two weeks - shall be 0.5 % for every full week of delay, but shall not exceed 5 % of the value of the price of the contract price.
- If, through no fault of BRACE, the installation is subject to loss or deterioration, BRACE shall be entitled to request the price of the installation less the costs of work not carried out. This also applies if the installation should prove impossible through no fault of BRACE. The customer can request the installation to be repeated if and in as far as this can be reasonably expected of BRACE, in particular with regard to BRACE's other contractual obligations. For the repeat installation, payment must be made again to BRACE on the basis of the contractual price.
- The customer or his representative, i.e. the responsible person stated under 8.4., must confirm the hours worked and the materials used by BRACE staff upon completion of the installation works and before their departure, on the work reports provided. Any possible incorrectness must be noted. Should the customer refuse to complete this confirmation, he forgoes the right to object to the invoice.
- Commissioning, acceptance
- For the purpose of commissioning, the customer undertakes to provide qualified personnel for the control, operation and maintenance of the plant. If personnel have been previously trained for operation by BRACE, it is imperative that they be made available for commissioning. If only personnel with no training or insufficient training are available, BRACE reserves the right to decline commissioning of the installation; any subsequent training will be invoiced separately. Any operation of the plant by BRACE personnel subsequent to commissioning will be invoiced separately.
- Acceptance can only be refused in the event of major defects, and only until these defects have been remedied. Acceptance can also be as a result of implied intent by the customer. If the installation object is largely functional and can be used according to the intended purpose by the customer, the installation object shall be considered accepted by the customer one month after its first ascertainable usage to the intended purpose.
- On acceptance of the installation, the customer and BRACE shall draw up an acceptance report. Any defects must be immediately stated and described in the acceptance report. The report should also include any modifications or delivery of additional parts as requested by the customer.
- If it is proven that the installation has not been carried out in accordance with the contract, BRACE will put to right any shown faults at its own cost within a reasonable period of time, providing that the fault has not been caused by circumstances beyond BRACE's control. If a fault, which is to be put to right by BRACE, is of no great consequence to the customer's interests, the customer may not decline acceptance, except if BRACE has expressly recognized its duty to put the fault to right.
- Liability of BRACE
- After acceptance, BRACE shall accept liability, to the exclusion of any further claims, for any installation faults that occur within 12 months of completion of installation provided these are proven to be the fault of BRACE's installation personnel as follows:
- The customer must duly submit a statement of all installation faults in writing. These shall be eliminated by BRACE within a reasonable period of time. Of the costs directly incurred due to the correction of faults, BRACE shall bear the cost of the spare parts including dispatch. In addition, BRACE shall bear the cost of removal and installation, as well as the cost of providing the necessary engineers and assistants, including travelling expenses, provided that this does not represent a disproportionate burden on BRACE.
- BRACE shall accept no liability whatsoever in the event of improper and/or unauthorised changes or repair work carried out to the installation by the customer or a third party. Only in urgent cases where the operational safety of the installation is at risk and to prevent a disproportionate level of damage does the customer have the right to correct the fault, or have it corrected by a third-party, and to demand restitution of the costs from BRACE.
- If BRACE is unable to correct a fault, to which it has a contractual obligation, or is unable to fulfil this obligation within a reasonable period of time, the customer is entitled to claim the reduction of the installation price as prescribed by law. The customer's right to claim the reduction of the installation price also applies in all other cases where BRACE fails to rectify any faults. Only if the installation is proven to be no longer of value to the customer in spite of said reduction, is the customer entitled to withdraw from the agreement.
- BRACE accepts no liability in the event of slight negligence. For gross negligence of ordinary vicarious agents, BRACE shall only be liable if the ordinary vicarious agent has violated cardinal obligations. In any event, BRACE shall only be liable for damage foreseeable and typical of the types of business in question. In as far as BRACE subsequently accepts liability for damages and, insofar as permissible, any indemnification shall be limited to a maximum of 10 % of the installation price.
- These limitations of liability do not apply to damages arising from injury to life and limb due to reckless neglect of duty on the part of BRACE or to reckless or wilful neglect of duty by one of BRACE's legal representatives or ordinary vicarious agents. Nor do they apply to claims in accordance with product liability or in the event of a guarantee or fraudulent concealment in accordance with §§ 444, 639, BGB (Civil Code).
- Liability of the customer
- The customer is liable for damages to all persons and property caused by personnel provided by him. Furthermore, the customer is also liable for damages caused by constructions, materials and software provided by him.
- If the customer fails to accept the installation, or violates any other obligation of participation, the risk of accidental loss or accidental deterioration of the machine or plant installed by BRACE is passed to the customer the instant acceptance is delayed.
- Any damages or additional costs incurred by BRACE due to the customer's violation of its obligation to participate shall be proven to the customer and invoiced.
- BRACE's Right of Withdrawal, the Customer's Right of Withdrawal
- The customer is able to withdraw from the contract if BRACE's fulfilment of it becomes conclusively impossible. The same applies if BRACE is incapable of performing.
- If the inability to fulfil the contract occurs during the default in acceptance or as a result of a fault of the customer, the customer remains obliged to counter-performance.
- Within the framework of legal provisions, the customer can only withdraw from the agreement if any delay in installation is due to gross or wilful negligence on the part of BRACE. In this case, the limitation of liability as specified in Point 15 applies accordingly.
- In the event of unforeseen circumstances, such as those defined in Point 12 (installation time) – insofar as they substantially affect the economic consequences or the contents of the services for BRACE – and in the event that execution then proves impossible, BRACE reserves the right to withdraw, either partially or completely, from the agreement should any amendment to the agreement fail to make it economically viable.
- Place of Jurisdiction and Place of Performance
- The place of performance shall be Karlstein am Main, Germany.
- Exclusive place of jurisdiction shall be Aschaffenburg. BRACE is also entitled to bring legal action at the domicile of the customer.
- German law applies exclusively without regard to its provisions on conflicts of laws. The UN Sales Convention (CISG) does not apply and is expressly excluded.
Rates and Surcharges
Rates and Surcharges for Mounting, Training and Repairwork
Rate Travel Time
(in words: two hundred fifty EURO)
(in words: two hundred EURO)
Design Draftsman/Design Engineer1
(in words: one hundred sixty EURO)
(in words: one hundred forty EURO)
(in words: one hundred fifty EURO)
(in words: one hundred EURO)
(in words: one hundred twenty EURO)
(in words: ninety EURO)
(in words: one hundred twenty EURO)
(in words: ninety EURO)
Senior Lab Technician3
(in words: one hundred ten EURO)
(in words: eighty EURO)
(in words: ninety five EURO)
(in words: seventy five EURO)
(in words: eighty five EURO)
(in words: seventy EURO)
(in words: fifty five EURO)
(in words: forty five EURO)
1 Only applicable for Engineering Design work
2 For on-site and off-site works regarding tests, setup, mounting, consulting, training, repairwork, engineering works
3 Only for lab works performed at the BRACE laboratory for engineering tests during engineering design work, not applicable for other laboratory tests
Surcharge in the time of Monday-Friday 6:00 – 7:00 : 25%
Surcharge in the time of Monday-Friday 17:00 – 22:00 : 25%
Surcharge in the time of Saturday 6:00 – 22:00 : 25%
Surcharge in the time of Monday-Saturday 22:00 – 6:00 : 50%
Surcharge for work on Sunday or Holidays : 100%
These prices do not include accommodation and travel costs which will be charged separately. In case travels are performed by car, per car and km (distance from Karlstein) 0,80 EUR are charged. These prices do not include spare parts, special tools or consumables, which will be charged separately.