General terms and conditions for work and services
General terms and conditions for work and services
General terms and conditions
1. Scope of application
These general terms and conditions of Petrofer Chemie H. R. Fischer GmbH + Co KG (“Client”) apply exclusively to the provision of work and services, in particular inspection, maintenance and repair services (“Services”) based on orders by the Client. We acknowledge provisions of the Contractor that conflict with or deviate from our terms and conditions only if we consent to their applicability expressly and in writing. Our terms and conditions apply even if we are aware of the Contractor’s provisions that conflict with or deviate from our terms and conditions and nevertheless accept or provide payment for the delivery without reservation. These general terms and conditions also apply to all future transactions with the Contractor to the extent that they are of a similar nature.
2. Contract conclusion / offers
Enquiries made by the Client to the Contractor regarding Services and conditions of delivery or requests by the Client for a draft contract are not binding on the Client. The Contractor is entitled to accept our order within two weeks following the order date. Call-offs under an order and call-off plan are binding if the Contractor does not oppose the call-off within three working days of receiving it. Delayed or modified acceptances do not constitute a new offer, but rather a non-binding draft contract. Orders, contracts and call-offs must be made in writing. Verbal agreements of any kind—including subsequent amendments—are binding only if confirmed by us in writing or electronically (via email). Draft contracts and quotes from the Contractor are not binding and shall not be compensated unless expressly agreed otherwise. Unless agreed separately in individual cases, we shall assume no costs and provide no compensation for visits, planning and other preliminary work undertaken by the Contractor in connection with the provision of draft contracts.
3. Remuneration / payment terms
The remuneration is defined in the individual contract for the project concerned. The remuneration is agreed based on an hourly and/or daily rate and/or a flat-rate fee. Charges and other expenses incurred by the Contractor will not be compensated unless stipulated otherwise in the individual contract concerned. The agreed remuneration includes and covers all expenses incurred by the Contractor. Unless agreed otherwise in our orders and call-offs, we shall pay the price within 14 days following receipt of the invoice with a discount of 3% or within 30 days of receipt of the invoice net. A prerequisite for payment is the provision of a duly issued and verifiable invoice in accordance with Section 14(4) of the German Value Added Tax Act (Umsatzsteuergesetz, UStG). If the Client is delayed in processing an invoice in the course of its ordinary business processes because one or more of these details is missing or is incorrect, the term of payment defined in sentence 1 will be extended by the duration of the delay. The term of payment commences upon receipt of the Contractor’s invoice; however, not before complete delivery or acceptance of the Services owed to us. Our written consent is required for partial payments or the invoicing of partial performance rendered. In addition to the requirements of Section 14(4) UStG, the invoice must include in particular the administrator responsible and the order number to ensure clear assignment to the service provided. Payments do not constitute acknowledgement of the delivery or service as in compliance with the contract.
4. Delivery / quality / product control
The Contractor guarantees that the Services meet the agreed specification. The drawings, dimensions, tolerances, standards, quality etc. (specification requirements) stipulated by us apply. Any deviating documents and details provided by the Contractor, such as illustrations, drawings, weights and dimensions, require our express, written consent. If the individual contract or the law provides for a goods inspection, this will be completed and documented by the Contractor. The Client shall check the Services following delivery only with regard to the identity (whether they match the Services detailed in the order or the call-off), completeness, transport damage and other damage visible externally. The Client shall notify the Contractor of any incorrect or deficient deliveries and any damage without delay. Beyond this, the Client is not obligated to inspect the Services supplied in accordance with Section 377(1) of the German Commercial Code (Handelsgesetzbuch, HGB). The Contractor shall instead perform an outgoing goods inspection. Prior to delivery to the Client, the Contractor shall inspect and test the Services in an adequate manner and provide the corresponding inspection documents to the Client at the Client’s request. The Contractor shall grant the Client or its authorised representatives, with prior notice and during normal business hours, unrestricted access to allow the Client to test or inspect the Services or check their compliance with the Client’s specification requirements.
5. Delivery dates and periods
The delivery dates or periods specified in orders or individual contracts are binding and are understood to be fulfilled at the place of performance.
Goods receipt times:
Monday – Thursday: 7:00 – 14:00
Friday: 7:00 – 11:00
We are not obligated to accept partial deliveries and/or advance deliveries or advance performance unless the Client provides prior written consent. The Contractor shall notify us immediately in writing, specifying the reasons and the expected delay, should circumstances arise or come to the Contractor’s attention that make it impossible to adhere to the agreed delivery or performance date. If the Contractor is in default, we are entitled to assert our statutory claims and, in particular, following the unsuccessful expiry of a reasonable period of time, to request compensation in lieu of performance and to withdraw from the contract. If we request compensation, the Contractor has the right to prove to us that it is not responsible for a breach of duty. In the event of a delay in delivery, we are entitled to request a contractual penalty of 0.1% of the delivery value per working day, however no more than 5% of the total delivery value. We are entitled to claim a contractual penalty in addition to fulfilment. We shall notify the Contractor of our reservation of the right to claim a contractual penalty within 10 working days following receipt of the delayed delivery at the latest. The right to assert further claims and rights remains reserved. If the damage caused by the delay exceeds the contractual penalty claimed, the contractual penalty will be offset against such further damage. The acceptance of the delayed delivery or performance without reservation does not constitute a waiver of the claims for compensation to which we are entitled on account of the delayed delivery or performance. This applies until the payment owed by us for the service concerned has been made in full. The Contractor may rely on a lack of necessary documents to be supplied by us only if the Contractor issued a written reminder for the documents and did not receive said documents within a reasonable period of time.
If a delivery item is required under the contract or by law to undergo acceptance testing, this acceptance test will be completed only once all Services to be rendered by the Contractor have been provided in full (final acceptance). Acceptance and the acceptance procedure must be documented in full. To the extent that the Contractor renders partial performance prior to final acceptance and the Client inspects, approves or uses said partial performance, this does not constitute partial acceptance and does not affect the Client’s claims. Acceptance will be completed within a reasonable period of time following complete service provision. The Client shall adhere to a notice period of one week when announcing the date and location of the acceptance test. The Contractor shall ensure that the employees who were predominantly involved in the service provision are present for the acceptance test at the Contractor’s expense. Acceptance will be issued in writing if the agreed specifications have been met.
The Contractor warrants that the deliveries or Services meet the agreed specifications and do not have any defects that negate or reduce their value or their suitability for normal or contractual use. If the individual contract or the law provides for an incoming goods inspection, we shall perform this only within the scope described in Section 4. We reserve the right to perform a more extensive incoming goods inspection. Furthermore, we shall provide notification of any defects as soon as they are detected during the ordinary course of business. The Contractor shall waive the right to object to the delayed notification of defects in this respect. We are entitled to the statutory claims for defects in full. We are in any case entitled to request from the Contractor at our option the rectification of the defect or the delivery of a new item. The right to compensation, in particular the right to compensation in lieu of performance, remains expressly reserved. The Contractor shall compensate the Client for all damage incurred as a result of defective contractual performance or another breach of contract. This does not apply if the Contractor is able to prove that it is not at fault. Claims for defects—irrespective of the legal basis—lapse 36 months following delivery or acceptance. Longer contractual or statutory limitation periods remain unaffected by this provision.
8. Third-party intellectual property rights
The Contractor warrants that no third-party intellectual property rights are infringed by the supply and use of the Services. We shall notify the Contractor of any claims asserted by third parties. We shall not acknowledge any such claims ourselves. To this extent, we authorise the Contractor to handle the dispute with the relevant third parties in and out of court. For its part, the Contractor shall notify the Client immediately in writing if a third party asserts claims based on an existing intellectual property right or if there is a threat of such claims. In the event of the culpable infringement of third-party intellectual property rights, the Contractor shall, at its own expense, defend against claims brought against us by third parties on account of the infringement of intellectual property rights in connection with the Contractor’s deliveries and Services. The Contractor shall indemnify us against any claims that arise from the use of such rights to the extent that the Contractor is responsible for them. If our use of the delivery is impaired by existing third-party intellectual property rights, the Contractor shall at its expense either obtain the relevant approval or modify or replace the elements of the delivery affected such that the use of the delivery no longer infringes third-party intellectual property rights and the delivery still complies with the contractual agreements.
9. Rights relating to work and services rendered
All rights resulting from the provision of the work and services belong exclusively to the Client without any limitation in terms of time, subject matter or location. In the event that any rights arise during the provision of work and services, the Contractor shall immediately transfer these rights to the Client. This applies to both rights to works that are not yet completed and rights to partial results of the service accordingly. Such transfers are covered by the agreed remuneration.
10. Liability / product liability / liability insurance
The Client has a contractual or non-contractual liability for damages only insofar as the damage concerned is due to gross negligence or wilful intent. In the case of the culpable injury to life, limb or health of a natural person, the Client is liable within the scope of the statutory provisions, including in the case of ordinary negligence. The Client is also liable in accordance with the statutory provisions for the breach of a material contractual obligation through ordinary negligence; however, the amount is limited to foreseeable damage. Where the Contractor is responsible for product damage, the Contractor shall, on first request, pay compensation or indemnify us against third-party compensation claims in this regard where the cause is within the Contractor’s sphere of control and organisation and the Contractor is itself liable to third parties. In this context, the Contractor shall also reimburse any expenses that arise from or in connection with a recall by us. To the extent possible and reasonable, we shall inform the Contractor of the content and scope of the recall measures to be undertaken and give the Contractor the opportunity to provide a statement. The right to assert other statutory claims remains unaffected.
We retain the rights of ownership and copyright to all documents provided to the Contractor in connection with the order, such as designs, formulae, data, calculations, drawings etc. The Contractor shall not disclose or make said documents available to third parties unless we give the Contractor our express and written consent to do this. These documents are to be used exclusively for the purposes of manufacturing for our order. The documents must be returned to us immediately if the Contractor does not accept our order within the period defined in Section 2. If our order is accepted, the documents must be returned to us unprompted upon completion of the order at the latest. The obligation to maintain confidentiality continues to apply after this contract has been executed. The obligation ceases to apply if and to the extent that the manufacturing knowledge contained in the illustrations, drawings, calculations and other documents have become general knowledge. The Contractor, its vicarious agents and any subcontractors that it uses shall maintain confidentiality regarding all information that they acquire during and on account of service provision, including after the cooperation between us and the Contractor ends, and shall use said information only for the purposes of fulfilling contractual obligations. The Contractor shall ensure that the data made available to it, its vicarious agents and any subcontractors that it uses to perform the Services is handled with care indefinitely.
12. Supplied materials and tools
To the extent that we provide parts to the Contractor, we shall retain ownership of these parts. These parts must always be labelled as the property of the Client. Any processing or alterations made by the Contractor will always be undertaken in our interests. If our goods subject to retention of title are processed with other items that do not belong to us, we shall acquire co-ownership of the new item based on the ratio of the value of our item (purchase price plus VAT) to the other items processed at the time of processing. If the item that we supplied is irreversibly joined to or combined with other items that do not belong to us, we shall acquire co-ownership of the new item based on the ratio of the value of the item subject to retention of title (purchase price plus VAT) to the other combined items at the time they are combined. If the items are combined in such a way that the Contractor’s item is regarded as the main item, it is agreed that the Contractor shall transfer co-ownership to us on a pro rata basis; the Contractor shall preserve sole ownership or co-ownership for us. We retain the right of ownership to tools; the Contractor shall use the tools exclusively for the purposes of providing the Services that we ordered and shall label the tools as belonging to the Client. The processing, combining or connecting (processing) of tools belonging to the Client is prohibited. The Contractor shall insure the tools belonging to us at replacement value at its own expense against fire and water damage and against theft. The Contractor shall perform any maintenance and inspection work required on our tools, as well as any repair work, at its own expense in a timely manner. The Contractor shall notify us of any failures immediately; if the Contractor culpably fails to do so, our right to claim compensation remains unaffected. The aforementioned provisions also apply to data carriers and other digital storage media accordingly. If the security interests to which we are entitled under No. 11.1 or 11.2 exceed the purchase price of all our as yet unpaid goods subject to retention of title by more than 10%, we shall, at the Contractor’s request, release the relevant security interests at our discretion.
The Contractor is entitled to use subcontractors at its own expense, but not without the Client’s prior consent. The use of a subcontractor does not release the Contractor from its contractual obligations. The Contractor does not have a right of substitution. The subcontractor is a vicarious agent of the Contractor. The Client is entitled to object to the use of a subcontractor for cause.
14. Final provisions
All agreements concluded between the parties for the purposes of executing this contract are laid down in this contract. There are no verbal side agreements. Any amendments or supplements to this contract, including this written form clause, must be made in writing. The Contractor may not assign any order, any claim against the Client or the contract itself, either in whole or in part, to a third party without the Client’s prior written consent. The place of performance is the location where the goods are to be supplied in accordance with the order. The exclusive place of jurisdiction for all disputes arising from this contract is Hildesheim, Germany. However, we are also entitled to bring an action against the Contractor at the place of jurisdiction where the Contractor is based. The law of the Federal Republic of Germany applies, to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods. Should one or more provisions of these terms and conditions or contractual clauses be or become invalid, either in whole or in part, or should this contract contain gaps or omissions, this will not affect the validity of the remaining provisions and clauses. The parties shall replace the invalid provision with another provision that is valid and reflects the economic purpose of the invalid or missing provision as closely as possible.