1. GENERAL; SCOPE OF APPLICATION

1.1 These General Terms and Conditions of Assembly of FREY shall apply exclusively to all assembly services, including monitoring and repair work, undertaken by FREY. FREY does not recognize any terms and conditions of the contractor that deviate from or conflict with these General Terms and Conditions of Assembly, unless FREY has expressly agreed to them in writing. This requirement of consent shall also apply if FREY, being aware of the contractor’s terms and conditions, carries out the delivery to the contractor without reservation. In addition, the General Terms and Conditions of Sale and Delivery of FREY shall apply.

1.2 No verbal collateral agreements have been made. All agreements made between FREY and the entrepreneur must be in writing. This applies in particular to legally relevant declarations and notifications that the entrepreneur must submit to FREY after the contract has been concluded (e.g. setting deadlines, notifications of defects, declarations of withdrawal or reduction).

1.3 These AMB are valid only opposite entrepreneurs as well as legal entities of the public right and public special estate in the sense of § 310 Abs. 1 BGB.

1.4 These AMB are also valid for all future contracts with the entrepreneur, even if FREY does not refer expressly to them any more.

2. ORDER, CHANGES

2.1 Orders come off according to the conditions of the delivery order, as far as the order contains assembly services, otherwise FREY can accept offers within two weeks from access. Orders of the entrepreneur are binding offers. The acceptance takes place via explanation or contribution of the achievement.

2.2 The execution of the assembly order results exclusively from the contractually agreed specifications. FREY may at any time make changes to the execution of the assembly order, provided that these (a) are necessary to meet legal or regulatory requirements, (b) do not significantly affect the property and function of the order and (c) are reasonable for the entrepreneur.

3. SERVICE OF FREY

3.1 The installation service taken over by FREY includes, if not otherwise agreed in written form between the parties, to set the objects delivered by FREY into a mechanically and electrically operational condition.

3.2 In principle, the services of FREY do not include

3.2.1 further works to be provided by the entrepreneur, in particular the laying and connection of supply lines of any kind, the execution of electrical installations, assembly and commissioning of aggregates or plants which do not belong to our scope of supply.

3.2.2 the acceptance which may be necessary according to the relevant accident prevention regulations,

unless otherwise agreed in writing.

3.3 FREY is entitled to use subcontractors.

4. PRICES, TERMS OF PAYMENT

4.1 Unless otherwise agreed, the prices of FREY valid at the time of the conclusion of the contract shall apply. The prices of FREY are calculated according to time and effort in accordance with the valid installation rates provided by FREY and are quoted in euros plus the applicable sales tax.

4.2 If, contrary to the following clause 5.1, FREY has to supply installation aids, FREY shall invoice the costs incurred for this separately.

4.3 The agreement of a flat-rate price must be made expressly. FREY calculates its flat-rate offers on the following basis:

4.3.1 commencement of the assembly in due time and on schedule;

4.3.2 normal and uninterrupted progress of the assembly; and

4.3.3 assembly during normal working hours and on working days, but with the possibility to be created by the entrepreneur to also be able to provide the services taken over by FREY outside or in addition to the normal working hours.

If the aforementioned bases of the price calculation should not arrive or be present for reasons for which the entrepreneur is responsible, or if the entrepreneur should wish changes to the assembly services taken over by FREY or additional services, the additional costs incurred as a result will be invoiced to the entrepreneur separately in accordance with FREY’s assembly rates. This also applies to assembly services requested by the entrepreneur outside normal working hours and outside working days.

4.4 The work performed is evidenced by the work records which the fitters of FREY submit to the entrepreneur for signing in each case.

4.5 In order to check whether assembly services in the territory of the European Union can be exempt from VAT, FREY requires the following information from the entrepreneur:

4.5.1 the VAT registration number;

4.5.2 the name and address of the entrepreneur;

4.5.3 the destination as well as

4.5.4 the provision of all documents necessary to prove an exempt intra-Community delivery (receipts, acknowledgements of receipt, etc.).

In the event that FREY is charged with a VAT back payment due to incorrect or incomplete information provided by the entrepreneur, FREY is entitled to pass this amount on to the entrepreneur. If the incorrectness or incompleteness of the information is due to a fault of the entrepreneur, he is obliged to pay damages to FREY.

4.6 Payments have to be made according to the conditions of the delivery order, as far as the order includes assembly services, otherwise immediately after invoicing and without deductions.

5. COOPERATION OF THE ENTREPRENEUR

5.1 The Contractor is obliged to cooperate insofar as this is necessary for the complete and timely execution of the contract. This refers in particular to the following services free of charge for FREY:

5.1.1 Obtaining all necessary public or private approvals and permits as well as any special permits that may be required for overtime, for example for work on Sundays and public holidays, or for particularly hazardous situations;

5.1.2 Provision and, if necessary, creation of a passable access road to the installation site for non-off-road trucks and truck-mounted cranes, whereby the passability must be ensured during the entire installation work, both inside and outside the hall area;

5.1.3 Unloading of the delivered material, transportation and professional storage of all delivered material at the installation site, protected against theft, damage and the effects of the weather;

5.1.4 (interim) transport to the installation site with set-up and dismantling, including the provision of suitable aids for intermediate transport and loading (e.g. cranes, forklift trucks);

5.1.5 Provision of the lifting and slinging equipment required for assembly (e.g. cranes, forklift trucks, slinging ropes) as well as all protective equipment prescribed by the employers’ liability insurance association and all energies required, such as electricity, water, compressed air, welding gases, fuels, including the necessary connections at the assembly site;

5.1.6 sufficient lighting at the place of assembly;

5.1.7 after (interim) storage, the cleaning of the material supplied by FREY, insofar as this has been contaminated for reasons for which the contractor is responsible, and its transport to the place of assembly;

5.1.8 dry, illuminated and lockable rooms in the immediate vicinity of the installation site for the storage of special parts, tools, etc.,

5.1.9 suitable rooms for the stay of FREY’s fitters, equipped with all necessary furnishings, with heating, lighting, washing facilities and sanitary installations;

5.1.10 protective clothing and protective devices, as far as these are necessary due to special circumstances at the installation site.

5.2 The contractor has to guarantee that the mechanics of FREY can start with the accepted installation services immediately after arrival and in due time and that the installation services accepted by FREY can be carried out without delays and interruptions for reasons for which the contractor is responsible. This also means that the contractor has to provide FREY in time before the beginning of the assembly with the necessary plans, drawings and other instructions. The contractor has to ensure that the tolerances according to the planning agreed between the parties (plans, drawings, etc.) are not exceeded.

5.3 If the contractor does not fulfill one of his obligations as described in this section 5, FREY is entitled to set the contractor a reasonable deadline for fulfillment. If the deadline expires without result, FREY is entitled, but not obliged, to fulfill the contractor’s obligation in his place and at his expense. FREY expressly reserves the right to assert any further rights.

6. SAFETY AND ACCIDENT PREVENTION

6.1 The contractor shall inform FREY in good time before the start of the installation of the safety and accident prevention regulations applicable at the installation site.

6.2 The contractor shall take the safety precautions necessary for the protection of persons and property at the place of installation. The tools to be provided by the contractor must comply with the relevant safety regulations, in particular the accident prevention regulations.

6.3 The contractor shall inform the fitters of FREY on site about the existing safety regulations, insofar as these are important for the installation. A site or project manager appointed by the contractor must ensure that the safety and accident prevention regulations are observed by the FREY fitters. The contractor must inform FREY immediately of any violations. In the event of serious violations, the contractor can refuse the offender access to the installation site in agreement with FREY.

6.4 In case of emergencies or accidents, the contractor is obliged to provide appropriate assistance to the fitters of FREY and to inform FREY immediately.

7. ASSEMBLY PERIOD AND DEFAULT

7.1 Assembly periods are only binding if FREY has expressly confirmed them in writing as binding. However, FREY will endeavor to meet non-binding deadlines. An assembly period shall not begin until all technical questions necessary for the performance of the service have been clarified, all documents to be supplied by the contractor or necessary permits have been received in good time, and all the contractor’s other obligations have been fulfilled properly and in good time.

7.2 A binding installation period shall be deemed to have been met if, by the time of its expiry, the installation object is ready for acceptance by the Contractor, or, in the event of a contractually agreed test, for the test to be carried out. In the event of additional or extended orders being placed at a later date or if additional installation services are required, the agreed installation period shall be extended accordingly.

7.3 Events of force majeure entitle FREY – even within the delay – to postpone the installation services for the duration of the hindrance. All circumstances for which FREY is not responsible and which make the provision of the installation services temporarily impossible or unreasonably difficult are equivalent to force majeure, in particular lawful strikes or lockouts, late delivery by suppliers for which the contractor is not responsible, official measures, import and export bans, energy and raw material shortages, and war. FREY will inform the entrepreneur about this immediately.

7.4 If the hindrance according to the above clause 7.3 lasts longer than two months, the entrepreneur is entitled, after setting a reasonable grace period, to withdraw from the contract if he can prove that the outstanding fulfillment of the contract is no longer of interest to him due to the delay.

7.5 If waiting periods, exceeding of the agreed installation period as well as of the daily driving times or repeated arrivals are caused by circumstances for which the entrepreneur is responsible, the resulting postponements do not lead to a delay on the part of FREY. The entrepreneur has to bear the additional costs incurred as a result, according to the time taken and the effort involved, in accordance with the respectively applicable installation rates.

7.6 If the assembly is interrupted due to circumstances for which the entrepreneur is responsible, the risk for the assembly work already performed shall pass to the entrepreneur for the duration of the interruption.

7.7 If an agreed assembly period is exceeded without there being a reason for this as described in the above clause 7.3, the company shall grant FREY a reasonable extension of at least 2 weeks in writing. If FREY is also culpably in breach of this extension, the entrepreneur is entitled to withdraw from the contract, but not to claim damages for non-performance or default, unless Frey is liable in accordance with clause 10.

8. ACCEPTANCE

8.1 As soon as FREY has completed the assembly and set the delivery item in a mechanically and electrically functional condition or a contractually agreed test of the assembled delivery item has taken place, FREY will notify the entrepreneur and request him to accept the delivery item with reference to the acceptance procedure according to this clause 8.1. FREY and the contractor shall draw up a record of the acceptance, which shall be signed by both parties. The contractor shall check the installation service completely within a period of two weeks and shall either declare acceptance in writing to FREY or shall inform FREY in writing of the defects found. If the contractor does not make any statement within the acceptance period, the installation service shall be deemed to have been accepted.

8.2 If the assembly proves not to be in accordance with the contract, FREY is obliged to remedy the defect at its own expense. This does not apply if and insofar as the defect is insignificant for the interests of the entrepreneur or is based on a circumstance for which the entrepreneur is responsible. If there is an insignificant defect, the customer cannot refuse acceptance.

8.3 After a defect has been remedied, FREY shall again notify the contractor that installation has been completed. The contractor shall inspect the installation work within a period of five working days. If the notified defects are remedied and no further defects occur that prevent the use of the delivery item in whole or in part, the entrepreneur shall declare acceptance in writing within this new acceptance period. If the entrepreneur does not make a declaration within this new acceptance period, the assembly service shall be deemed to have been accepted.

8.4 In any case, acceptance shall be deemed to have taken place if the entrepreneur uses the assembled delivery item.

8.5 FREY expressly points out that the acceptance of the contractor does not automatically entitle the contractor to put the delivery item into operation and use it. The delivery item may only be put into operation when all legal and/or official regulations to be fulfilled by the contractor have been fulfilled.

9. WARRANTY

9.1 The entrepreneur decides on his own responsibility on the use of the objects delivered by FREY or other services. Unless FREY has confirmed in writing specific properties or suitability for a contractually specified purpose, any technical advice on use is non-binding in any case.

9.2 If defects in the assembly work by FREY occur after acceptance, the contractor must notify FREY of this in writing without delay. FREY is entitled and obliged to remedy the defect. The contractor must give FREY a reasonable amount of time and opportunity to identify and rectify the defect. Only in urgent cases of operational safety and to prevent disproportionately large damage, about which FREY is to be informed immediately, or if FREY is in default of remedying the defect, the contractor has the right to remedy the defect himself or have it remedied by third parties and to demand reimbursement of the necessary costs from FREY.

9.3 If FREY does not fulfill the obligation for rectification and the contractor sets FREY a reasonable period of grace with the declaration that he will refuse to remedy the defect after the expiry of the period, the contractor may reduce the agreed price or withdraw from the contract after the expiry of the period. The same applies if the rectification has failed or if a rectification is impossible. Further claims for damages shall only exist in accordance with the provisions of Section 10.

9.4 The warranty of FREY does not cover natural wear and tear, nor does it cover damage that occurs after acceptance, in particular for the following reasons: unsuitable or improper use, faulty assembly or commissioning by the contractor or third parties, damage caused by other construction work, modifications or repairs carried out without the approval of FREY.

9.5 The limitation period for warranty claims is twelve months. It begins with the declaration of acceptance by the entrepreneur or, in the event of a delay in acceptance by the entrepreneur, with the expiry of the acceptance period.

10. LIMITATION OF LIABILITY, INDEMNIFICATION

10.1 FREY has unlimited liability for intent and gross negligence.

10.2 FREY is only liable for slight negligence if an obligation is violated whose fulfillment is essential for the proper execution of the order or contract (contract) and on whose compliance the entrepreneur may regularly rely. In such cases, FREY’s liability is limited to the foreseeable damage typical for such a contract.

10.3 Limitations and exclusions of liability according to this number 10 are not valid for claims from the product liability law and for the damages because of the injury of life, body or health.

10.4 As far as the liability of FREY is excluded or limited, this is valid correspondingly for the personal liability of the organs, employees, representatives and vicarious agents of FREY.

10.5 The claims for damages of the entrepreneur become time-barred one year after knowledge of the damaging event. This does not apply to claims based on intent or gross negligence, to damages due to injury to life, body or health, or to claims under the Product Liability Act.

10.6 The entrepreneur shall indemnify FREY, its organs, employees, representatives and vicarious agents against any claims by third parties at the first request, which arise for FREY and/or the named persons from a culpable breach of duty by the entrepreneur. The entrepreneur shall reimburse FREY and the named persons for all expenses necessary and reasonable for the legal defense.

11. ASSIGNMENT; RIGHTS OF RETENTION; SET-OFF

11.1 The entrepreneur is not entitled to assign his claims against FREY arising from this contract. This does not apply if § 354a HGB (German Commercial Code) is applicable.

11.2 The entrepreneur is only entitled to set-off insofar as his counterclaims are undisputed or have been legally established.

11.3 The same applies to rights of retention and rights to refuse performance according to §§ 320, 273 BGB. The entrepreneur may only exercise such rights if they arise from the same contractual relationship. In an ongoing business relationship, each individual order is considered a separate contract.

12. SEVERABILITY CLAUSE, LANGUAGE OF CORRESPONDENCE, JURISDICTION, APPLICABLE LAW

12.1 Should individual provisions or parts of these GTC be or become invalid, the validity of all other provisions shall remain unaffected. The invalid provision shall be replaced by an agreement that comes closest to the purpose of the contract and the will of the parties.

12.2 The language of the contract is German.

12.3 In case of doubt about the wording of these AMB, the German-language text version shall apply.

12.4 Exclusive place of jurisdiction shall be Munich. However, FREY shall be entitled to sue the entrepreneur also at his general place of jurisdiction.

12.5 The law of the Federal Republic of Germany shall apply exclusively. The application of the German international private law as well as the UN Sales Convention (UN-CISG) shall be excluded.