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General Terms and Conditions of Sale and Delivery

(hereinafter referred to as the “GTC”) of Frey & Co. GmbH (hereinafter referred to as “FREY”) for use in dealings with businesses (hereinafter referred to as “Businesses”)

1. GENERAL PROVISIONS, SCOPE OF APPLICATION

 
1.1. These General Terms and Conditions of FREY apply exclusively. Any terms and conditions of the contractor that deviate from or conflict with these General Terms and Conditions shall not be recognised by FREY, unless FREY has expressly agreed to their validity in writing. This requirement for consent shall also apply if FREY carries out the delivery to the contractor without reservation, whilst being aware of the contractor’s terms and conditions. In addition, FREY’s General Terms and Conditions of Installation apply to any installation services undertaken.
 
1.2. No verbal side agreements have been made. All agreements between FREY and the contractor must be in writing. This applies in particular to legally significant declarations and notifications to be made by the contractor to FREY after the conclusion of the contract (e.g. setting of deadlines, notifications of defects, declarations of withdrawal or reduction).
 
1.3. These General Terms and Conditions apply only to businesses, legal entities governed by public law and special funds under public law within the meaning of Section 310(1) of the German Civil Code (BGB).
 
1.4. These General Terms and Conditions shall also apply to all future contracts with the contractor, even if FREY no longer expressly refers to them.
 
 

2. QUOTATION, SERVICES TO BE PROVIDED BY THE CONTRACTOR, AMENDMENTS

2.1. Offers from FREY are subject to change.
 
2.2. Orders placed by the customer are binding. An order placed by the customer is only deemed to have been accepted once FREY has confirmed acceptance in writing or once the goods have been dispatched by FREY. In the event of immediate delivery by FREY, the written order confirmation
be replaced by FREY’s invoice. FREY may accept orders within two weeks of receipt.
 
2.3 The performance of the order, in particular the quality of the items to be manufactured, delivered or installed by FREY (deliverables), shall be determined exclusively by the specifications agreed in the contract. Any reference to standards, similar technical rules, other technical data, descriptions and illustrations in quotations and brochures constitutes merely a description of the service and does not constitute a guarantee of properties. FREY may at any time make changes to the execution of the order or to the delivery items, provided that these:
 
2.3.1 are necessary to comply with legal or regulatory requirements, and
 
2.3.2 do not significantly impair the characteristics and functions of the goods supplied and are reasonable for the trader to accept.
 
2.4 Deviations in dimensions and weight within the limits of standard commercial tolerances and relevant DIN standards are permissible. FREY may make technical improvements to the design, materials and form, provided that these do not impair the product’s suitability for the intended purpose and are otherwise reasonable for the contractor to accept.
 
2.5 FREY is entitled to use subcontractors.
 

2.6 FREY reserves the right to withdraw from the contract if, for reasons attributable to the contractor, the risk associated with the recoverability of the claim against the contractor cannot be insured, or cannot be insured at standard rates, with credit insurers. FREY shall be entitled to exercise this right of withdrawal by means of a declaration sent to the Contractor in writing or by fax no later than 14 days after the date of the order confirmation.

 

3. PRICES, TERMS OF PAYMENT

3.1. Unless otherwise agreed, the prices quoted by FREY at the time the contract is concluded shall apply. FREY’s prices are quoted in euros ex works and are subject to the applicable value added tax and any other indirect taxes and customs duties.

3.2. FREY charges packaging costs separately. The same applies to any customs duties, fees, taxes and other public charges.

3.3. If FREY dispatches the goods at the contractor’s request (see clause 6.1), the contractor shall bear the transport costs and the costs of any transport insurance requested by the contractor.

3.4. FREY may take into account any increase in the costs of procuring materials, labour and ancillary labour costs, and energy costs in its prices if the agreed delivery date is delayed or postponed by more than three months for reasons for which the contractor is responsible.

3.5. In order to determine whether deliveries within the European Union are eligible for VAT exemption, FREY requires the following from the business:

3.5.1. the VAT registration number;

3.5.2. the name and address of the trader;

3.5.3. the destination, as well as

3.5.4. the provision of all documents required to prove a tax-exempt intra-Community supply (invoices, delivery notes, etc.).

In the event that FREY is required to pay additional VAT as a result of incorrect or incomplete information provided by the contractor, FREY shall be entitled to pass this amount on to the contractor. If the inaccuracy or incompleteness of the information is due to the contractor’s fault, the contractor shall be liable to pay compensation to FREY.

3.6. Invoices are payable upon receipt. The contractor is obliged to pay the purchase price within 10 days.

3.7. Discounts and price reductions require a specific written agreement.

 

4. PARTIAL PERFORMANCE, DELIVERY AND PERFORMANCE TIMES, AND DEFAULT

4.1. FREY is entitled to provide partial services, provided that this is reasonable for the contractor. In the case of partial services, FREY may demand payment in proportion to the value of the partial services as a percentage of the total contract value. FREY may require the contractor to accept a self-contained partial service within the meaning of the first sentence.

4.2. Delivery times are only binding if FREY has expressly confirmed them in writing as such. However, FREY will endeavour to meet even non-binding delivery times. A delivery period shall not commence until the contractor and FREY have clarified all technical issues necessary for the performance of the service. The date of dispatch ex works shall be decisive for compliance with delivery times.
 
4.3. FREY is entitled to withhold services if the contractor fails to fulfil its contractual obligations in a timely and proper manner, in particular if it fails to make the advance payments agreed with FREY on time or fails to provide the necessary cooperation required for the complete and timely provision of FREY’s services.
 
4.4. Events of force majeure entitle FREY – even whilst in default – to postpone performance for the duration of the hindrance. Force majeure shall include all circumstances for which FREY is not responsible and which render the performance of the service temporarily impossible or unreasonably difficult, in particular lawful strikes or lockouts, delays in FREY’s own supply for which the contractor is not responsible, official measures, import and export bans, shortages of energy and raw materials, and war. Frey shall inform the Contractor of this without delay.
 
4.5.
If the hindrance lasts for more than two months, the contractor is entitled, after setting a reasonable grace period, to withdraw from the contract if he can demonstrate that the part of the contract still outstanding is no longer of interest to him due to the delay. Any period for subsequent performance to be set by the contractor must be at least four weeks and must be set out in writing.
 
4.6. If an agreed delivery time is exceeded without there being an obstacle to delivery as referred to in the preceding paragraph
4.4, the contractor must grant FREY a reasonable grace period of at least two weeks in writing. If FREY culpably fails to meet this grace period as well, the contractor is entitled to withdraw from the contract, but not to claim
claims for damages arising from non-performance or delay, unless Frey is liable in accordance with clause 8.
 
 

5. WARRANTY

5.1. FREY warrants only that the goods comply with the specifications set out in clause 2.3; however, these specifications do not constitute a guarantee of specific characteristics, unless the parties have agreed to a guarantee in writing. In particular, FREY does not warrant that the goods are suitable for a particular use or purpose, or that they are of merchantable quality. In particular, where goods are delivered abroad by a domestic trader, FREY does not guarantee that the goods comply with legal requirements abroad or are not subject to any restrictions there. The trader undertakes
to take out adequate product liability insurance that also covers potential damage that may arise from deliveries abroad.
 
5.2. The contractor is only entitled to warranty rights if he has duly fulfilled his obligations to inspect the goods and give notice of defects (Section 377 of the German Commercial Code (HGB)); to this end, the contractor or the recipient designated by him must inspect the goods immediately upon delivery. Obvious defects must be reported to FREY in writing without delay, but no later than seven days after receipt of the goods. Hidden defects must be reported in writing immediately upon their discovery. If the contractor fails to give proper notice of defects, FREY’s liability for such defects is excluded.
 
5.3. In the event of defective deliveries, FREY shall, at its discretion, either remedy the defect or supply a defect-free item, provided that the contractor has duly paid a proportion of the price that is reasonable in view of the defect by the due date. The contractor shall assist FREY in identifying defects and in the performance of subsequent performance. In addition, the contractor shall immediately grant access to documents from which the specific circumstances of the defect can be ascertained. FREY may refuse to remedy the defect if this is only possible at disproportionate cost.
 
5.4 If the attempt at rectification fails, the contractor is entitled to withdraw from the contract or to claim a reduction in price. Rectification shall only be deemed to have failed if two attempts at rectification have proved unsuccessful. Withdrawal is excluded if the agreed quality differs only insignificantly from the actual quality or if the contractual or normal use is only insignificantly impaired.
 
5.5 FREY makes it clear that changes in the material resulting from ageing or environmental conditions do not constitute a defect.
 
5.6 The Contractor’s claims for damages or reimbursement of wasted expenditure shall, even in the event of defects, be governed solely by the provisions of Clause 8 and are otherwise excluded.
 

6. TRANSFER OF RISK, DELIVERY

6.1. Delivery is ex works from the Lenggries-Fleck site, which is also the place of performance. Any shipping costs shall be borne by the contractor at their own risk.
 
6.2. Risk of loss or damage passes to the contractor ex works at Lenggries-Fleck (EXW Lenggries-Fleck, INCOTERMS 2010). The handover shall be deemed to have taken place if the contractor is in default of acceptance.
 
6.3. If dispatch is delayed for reasons beyond FREY’s control, the risk shall pass to the customer upon receipt of notification that the goods are ready for dispatch.
 
6.4. Storage costs following the transfer of risk shall be borne by the contractor. Where storage is provided by FREY, storage costs shall amount to 0.25% of the invoice value of the goods to be stored for each week elapsed. We reserve the right to claim and provide evidence of higher or lower storage costs.
 
6.5. If, in addition to delivering a product, FREY has also undertaken to install it, the goods shall be deemed to have been delivered as soon as the contractor has accepted them in accordance with FREY’s General Terms and Conditions of Installation. In this case, the place of performance shall be the location where the installation is to take place.
 

7. RETENTION OF TITLE

7.1. FREY retains title to the goods delivered until all payments under the relevant contract and all other claims against the contractor arising from the business relationship have been received.
 
7.2. The contractor is obliged to treat goods subject to retention of title with due care. The contractor is also obliged to insure such goods at their own expense against loss, fire and water damage, theft and damage caused by natural forces, up to the amount of their purchase price.
 
7.3. The Contractor is entitled to resell goods subject to retention of title in the ordinary course of business, provided that he is not in default of payment. The Contractor hereby assigns to FREY all claims in the amount of the final invoice amount of FREY’s claim arising from the resale against its customers or third parties, irrespective of whether the products have been resold unprocessed or after processing or incorporation. FREY accepts this assignment. The Contractor remains authorised to collect this claim even after the assignment. FREY’s authority to collect this claim itself remains unaffected by this. FREY undertakes, however, not to collect the claim as long as the contractor meets his payment obligations from the proceeds received, is not in default of payment and, in particular, no application has been made to open insolvency proceedings in respect of his assets or he has suspended payments. If this is the
In such cases, FREY may require the contractor to disclose the assigned claims and their debtors, to provide all information necessary for collection, to hand over the relevant documents, and to notify the debtors (third parties) of the assignment. FREY undertakes to release any security to which it is entitled in respect of the goods delivered and claims at the contractor’s request, insofar as the realisable value of the security exceeds the claims to be secured by more than 10%.
 
7.4 The restrictions set out in clause 7.3 above shall apply mutatis mutandis to the Contractor’s right to process the goods delivered. By processing the goods, the Contractor does not acquire ownership of the items produced in whole or in part; the processing is carried out free of charge exclusively for FREY as the manufacturer within the meaning of Section 950 of the German Civil Code (BGB). Should FREY’s retention of title nevertheless lapse due to any circumstances, the Contractor and FREY hereby agree that ownership of the goods shall pass to FREY upon processing, that FREY shall accept such transfer of ownership, and that the Contractor shall remain the custodian of the goods free of charge.
 
If the goods subject to retention of title are processed or inseparably mixed with goods still owned by a third party, FREY shall acquire co-ownership of the new items or the mixed stock. The extent of such co-ownership shall be determined by the ratio of the invoice value of the goods subject to retention of title to the invoice value of the other goods.
 
7.5 If a third party seizes goods subject to retention of title or otherwise infringes FREY’s ownership rights, the contractor shall notify FREY without delay so that FREY may take legal action to protect its property, in particular by bringing an action under Section 771 of the German Code of Civil Procedure (ZPO). In addition, the contractor is obliged to inform the third party and the bailiff that the product in question is the property of FREY. Insofar as the third party is unable to reimburse FREY for the judicial and extrajudicial costs of this
If the contractor FREY is required to reimburse the costs of protective measures, it shall be liable for the costs not paid by the third party.
 
7.6 The Contractor is obliged to inform FREY immediately of any damage to the products subject to retention of title, as well as of any change in the Contractor’s registered office.
 
7.7 In the event of withdrawal from the contract, FREY shall be entitled to demand the return of the goods subject to retention of title.
 
 

8. LIMITATION OF LIABILITY, INDEMNITY

8.1. FREY shall be liable without limitation for wilful misconduct and gross negligence.
 
8.2. FREY shall only be liable for slight negligence insofar as a breach has occurred of an obligation whose fulfilment is essential to the proper performance of the order or contract (the Contract) and on whose observance the contractor may reasonably rely. In such cases, FREY’s liability shall be limited to the foreseeable damage typical for such a contract.
 
8.3. The limitations and exclusions of liability set out in this clause 8 do not apply to claims arising under the Product Liability Act or to damages resulting from injury to life, limb or health.
 
8.4. Where FREY’s liability is excluded or limited, this shall apply mutatis mutandis to the personal liability of FREY’s officers, employees, agents and vicarious agents
 
8.5. The limitation period for warranty claims (Clause 5) against the contractor is one year from the transfer of risk (Clause 6). Other claims for damages shall become time-barred one year after the damaging event becomes known. This shall not apply to claims based on intent or gross negligence, to damages resulting from injury to life, limb or health, or to claims under the Product Liability Act.
 
8.6. The Contractor shall, upon first request, indemnify FREY, its officers, employees, agents and vicarious agents against any claims by third parties arising against FREY and/or the aforementioned persons as a result of a culpable breach of duty by the Contractor. The Contractor shall reimburse FREY and the aforementioned persons for all necessary and reasonable expenses incurred in connection with the defence of such claims.
 
 

9. ASSIGNMENT; RIGHTS OF RETENTION; SET-OFF

9.1 The Contractor is not entitled to assign its claims against FREY arising from this contract. This does not apply where Section 354a of the German Commercial Code (HGB) applies.
 
9.2 Der Unternehmer ist zur Aufrechnung nur berechtigt, soweit seine Gegenansprüche unbestritten oder rechtskräftig festgestellt sind.
 
9.3 The same applies to rights of retention and refusal to perform under
Sections 320 and 273 of the German Civil Code (BGB). The trader may only exercise such rights if they arise from the same contractual relationship. In an ongoing business relationship, each individual order is regarded as a separate contract.
 
 

10. MARKINGS, DRAWINGS AND OTHER DOCUMENTS

10.1 The contractor may only use the FREY name and any other FREY trademarks, logos or distinctive signs in the course of business, in particular for advertising purposes, with FREY’s prior written consent.
 
10.2 Drawings, designs and other documents provided by FREY to the Contractor during the negotiation or performance of the contract remain the property of FREY and may not be made available to third parties, reproduced or used for any purpose other than that agreed without FREY’s express written consent. FREY shall be entitled to demand the return of the aforementioned documents – including any copies – free of charge if the Contractor no longer requires these documents and if FREY becomes aware of any misuse of these documents. Any right of retention on the part of the Contractor in this regard is excluded.
 
10.3 The Contractor shall be liable for ensuring that the use of drawings, samples, plans, etc. supplied by the Contractor does not infringe the rights of third parties.
 
Should third parties prohibit FREY, on the grounds of intellectual property rights, from manufacturing and supplying such items in particular, FREY shall be entitled – without being obliged to examine the legal position – to cease all further activities in this regard and to claim damages. The contractor shall also indemnify FREY against any losses incurred by FREY as a result, in particular claims for damages by third parties.

 

11. Data Protection

FREY collects and processes the entrepreneur’s personal data exclusively in accordance with the provisions of the Federal Data Protection Act (BDSG) and the EU General Data Protection Regulation (GDPR).

FREY processes and uses the data collected from the business owner in connection with their order for the purposes of establishing, performing and terminating the contractual relationship with the business owner, including the handling of warranty claims. FREY will only disclose the contractor’s personal data to third parties if and to the extent that this is necessary for the performance of the contract, in particular for the execution of the delivery. The legal basis for data processing is Article 6(1)(b) of the GDPR. Personal data will be deleted unless statutory retention periods prevent this. To exercise your rights to access, rectification, erasure, restriction or objection, please contact our Data Protection Officer at datenschutz@frey-systeme.de. Furthermore, you will find a detailed description of how personal data is handled and your rights in the general data protection information sheet at http://frey-systeme.de/datenschutzerklaerung/

 

12. NO-RUSSIA CLAUSE

12.1. The supplier/purchaser is prohibited from sell, export or re-export, directly or indirectly, to Russia or for use in Russia, any goods or technologies supplied under or in connection with this contract that fall within the scope of Article 12g of Council Regulation (EU) No 833/2014 (with the exception of goods falling under CN codes 8457 10, 8458 11, 8458 91, 8459 61 and 8466 93, which are listed in Annex XL to Regulation (EU) No 833/2014).
 
12.2. Should FREY & Co. GmbH sell, licence or otherwise transfer them, or grant rights of access to or further use of material or information protected by intellectual property rights or as trade secrets and relating to the high-priority common goods listed in Annex XL to Regulation (EU) No 833/2014 (‘High-Priority Common Goods’), the Supplier/Purchaser is prohibited (and is obliged to prohibit all potential sub-licensees) from using such intellectual property rights, trade secrets or other information relating to High-Priority Common Goods that are intended, directly or indirectly, for sale, supply, transfer or export to Russia or for use in Russia.
 
12.3. A breach of paragraphs (1) and (2) constitutes good cause entitling Frey & Co. GmbH to terminate this contract for good cause or to withdraw from this contract (or from the individual contracts, in the case of a framework agreement). Frey & Co. GmbH shall be entitled to claim compensation for any loss or damage arising from a breach of paragraphs (1) and (2).
 
12.4. The supplier/buyer must establish and maintain an appropriate monitoring system to detect any potential breaches of paragraphs (1) and (2) by third parties further down the supply chain.
 
12.5. The Supplier/Purchaser shall immediately notify FREY & Co. GmbH of any issues arising from the application of this clause in its entirety, including any relevant actions by third parties that could frustrate the purpose of paragraphs (1) and (2), and shall provide FREY & Co. GmbH with the relevant information regarding compliance with the obligations under this clause within two weeks of being requested to do so.
 

13. SEVERALITY CLAUSE, LANGUAGE OF CORRESPONDENCE, JURISDICTION, GOVERNING LAW

13.1. Should any individual provisions or parts of these General Terms and Conditions be or become invalid, this shall not affect the validity of the remaining provisions. The invalid provision shall be replaced by an agreement that most closely reflects the purpose of the contract and the intentions of the parties.
 
13.2. The language of the contract is German.
 
13.3. In the event of any doubt regarding the wording of these General Terms and Conditions, the German-language version shall prevail.
 
13.4. The exclusive place of jurisdiction is Munich. However, FREY is also entitled to bring legal proceedings against the contractor at the contractor’s general place of jurisdiction.
 
13.5. The law of the Federal Republic of Germany shall apply exclusively. The application of German private international law and the United Nations Convention on Contracts for the International Sale of Goods (CISG) is
excluded.

General Terms and Conditions of Installation

General Terms and Conditions of Installation (hereinafter “AMB”) of Frey & Co. GmbH (hereinafter “FREY”) for use in dealings with businesses (hereinafter “Businesses”)

1. GENERAL PROVISIONS, SCOPE OF APPLICATION

1.1 These General Terms and Conditions of FREY apply exclusively to all installation services undertaken by FREY, including inspections and repair work. Any terms and conditions of the contractor that deviate from or conflict with these General Terms and Conditions shall not be recognised by FREY, unless FREY has expressly agreed to their validity in writing. This requirement for consent shall also apply if FREY carries out the delivery to the contractor without reservation whilst being aware of the contractor’s terms and conditions. In addition, FREY’s General Terms and Conditions of Sale and Delivery shall apply.

1.2 No verbal side agreements have been made. All agreements between FREY and the contractor must be in writing. This applies in particular to legally significant declarations and notifications to be made by the contractor to FREY after the conclusion of the contract (e.g. setting of deadlines, notifications of defects, declarations of withdrawal or reduction).

1.3 These General Terms and Conditions apply only to businesses, legal entities governed by public law and special funds governed by public law within the meaning of Section 310(1) of the German Civil Code (BGB).

1.4 These General Terms and Conditions shall also apply to all future contracts with the contractor, even if FREY no longer expressly refers to them.

 

2. ORDER, AMENDMENTS

2.1 Contracts are concluded in accordance with the terms and conditions of the supply order, provided that the order includes installation services; otherwise, FREY may accept quotations within two weeks of receipt. Orders placed by the contractor constitute binding offers. Acceptance takes place by means of a declaration or by the performance of the service.

2.2 The performance of the installation contract shall be governed exclusively by the specifications agreed in the contract. FREY may at any time make changes to the performance of the installation contract, provided that such changes (a) are necessary to comply with statutory or regulatory requirements, (b) do not materially impair the nature and function of the contract, and (c) are reasonable for the contractor.

 

3. FREY’S SERVICES

3.1 Unless otherwise agreed in writing between the parties, the installation services provided by FREY shall comprise bringing the items supplied by FREY into a condition in which they are mechanically and electrically ready for operation.

3.2 The following are generally not included in the services provided by FREY

3.2.1 Additional work to be carried out by the contractor, in particular the laying and connection of supply lines of any kind, the carrying out of electrical installations, and the assembly and commissioning of units or systems that are not included in our scope of supply.

3.2.2 any necessary acceptance testing required under 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 quoted by FREY at the time the contract is concluded shall apply. FREY’s prices are calculated on a time and materials basis in accordance with the current installation rates provided by FREY; they are quoted in euros and are subject to the applicable VAT.

4.2 If, notwithstanding clause 5.1 below, FREY is required to supply installation aids, FREY shall invoice the costs incurred for this separately.

4.3 Any agreement on a flat rate must be made expressly. FREY calculates its flat-rate quotes on the following basis:

4.3.1 Commencement of installation within the agreed timeframe and on schedule;

4.3.2 the installation proceeding normally and without interruption; and

4.3.3 Installation during normal working hours and on working days, but with the contractor ensuring that the services undertaken by FREY can also be performed outside or in addition to normal working hours.

Should the aforementioned basis for price calculation not be met or available for reasons attributable to the Client, or should the Client request changes to the installation services undertaken by FREY or additional services, the resulting additional costs will be invoiced to the Client separately in accordance with FREY’s installation rates. This also applies to installation services requested by the contractor outside normal working hours and on non-working days.

4.4 Work reports, which FREY’s fitters submit to the contractor for signature, serve as proof of the work carried out.

4.5 In order to determine whether installation services within the European Union are eligible for VAT exemption, FREY requires the following information from the business

4.5.1 the VAT registration number;

4.5.2 the name and address of the trader;

4.5.3 the destination, and

4.5.4 the provision of all documents required to prove a tax-exempt intra-Community supply (invoices, delivery notes, etc.).

In the event that FREY is required to pay additional VAT as a result of incorrect or incomplete information provided by the contractor, FREY shall be entitled to pass this amount on to the contractor. If the inaccuracy or incompleteness of the information is due to the contractor’s fault, the contractor shall be liable to pay compensation to FREY.

4.6 Payments must be made in accordance with the terms of the supply order where the order includes installation services; otherwise, payment is due immediately upon invoicing and without deduction.

5. THE CONTRACTOR’S INVOLVEMENT

5.1 The Contractor is obliged to cooperate to the extent necessary for the full and timely performance of the contract. This applies in particular to the following services provided free of charge by FREY:

5.1.1 Obtaining all necessary public or private law authorisations and permits, as well as any special permits required in the event of overtime, for example for work on Sundays and public holidays, or in the event of particular hazards;

5.1.2 Provision and, where necessary, creation of an access route to the installation site that is suitable for lorries and mobile cranes not designed for off-road use, whereby the route must remain passable throughout the entire duration of the installation work, both inside and outside the hall area;

5.1.3 Unloading of the delivered materials, transport and proper storage of all delivered materials at the installation site, protected against theft, damage and the effects of the weather;

5.1.4 (Interim) transport to the installation site, including assembly and dismantling, and the provision of suitable equipment for interim transport and loading operations (e.g. cranes, forklift trucks);

5.1.5 Provision of the lifting and slinging equipment required for installation (e.g. cranes, forklift trucks, slings) as well as any protective equipment required by the relevant occupational health and safety authority and all necessary utilities such as electricity, water, compressed air, welding gases and fuels, including the necessary connections at the installation site;

5.1.6 Adequate lighting at the installation site;

5.1.7 following (interim) storage, the cleaning of the material supplied by FREY, insofar as it has become soiled for reasons attributable to the contractor, and its transport to the installation site;

5.1.8 Dry, well-lit and lockable rooms in the immediate vicinity of the installation site for the storage of special parts, tools, etc.,

5.1.9 suitable accommodation for FREY’s fitters, equipped with all necessary furnishings and fittings, including heating, lighting, washing facilities and sanitary facilities;

5.1.10 Protective clothing and protective equipment, where these are required due to specific circumstances at the installation site.

5.2 The Contractor must ensure that FREY’s fitters are able to commence the installation work immediately upon arrival and within the agreed timeframe, and that the installation work undertaken by FREY can be carried out without delays or interruptions attributable to the Contractor. This also includes the Contractor providing FREY with the necessary plans, drawings and other instructions in good time before installation begins. The Contractor must ensure that the tolerances are not exceeded in accordance with the plans agreed between the parties (plans, drawings, etc.).

5.3 If the Contractor fails to fulfil any of the obligations set out in this Clause 5, FREY shall be entitled to set the Contractor a reasonable period of grace for performance. Upon the fruitless expiry of the grace period, FREY shall be entitled, but not obliged, to perform the obligation incumbent upon the Contractor in its stead and at the Contractor’s expense. FREY expressly reserves the right to assert any further rights.

 

6. SAFETY AND ACCIDENT PREVENTION

6.1 The contractor must inform FREY, in good time before installation work begins, of the health and safety and accident prevention regulations applicable at the installation site.

6.2 The contractor must take the necessary safety precautions to protect persons and property at the site where the installation work is being carried out. The equipment to be provided by the contractor must comply with the relevant safety regulations, in particular accident prevention regulations.

6.3 The contractor must inform FREY’s fitters on site of the applicable safety regulations, insofar as these are relevant to the performance of the installation work. A site manager or project manager appointed by the contractor must ensure that FREY’s fitters comply with the health and safety and accident prevention regulations. The contractor must notify FREY immediately of any breaches. In the event of serious breaches, the contractor may, in consultation with FREY, refuse the offender access to the installation site.

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

 

7. INSTALLATION DEADLINE AND DEFAULT

7.1 Installation deadlines are only binding if FREY has expressly confirmed them in writing as such. However, FREY will endeavour to meet even non-binding installation deadlines. An installation deadline shall not commence until all technical issues necessary for the performance of the service have been clarified, all documents to be supplied by the contractor or necessary approvals have been received in good time, and all other obligations of the contractor have been fulfilled in a timely and proper manner.

7.2 A binding installation deadline shall be deemed to have been met if, by the time it expires, the item to be installed is ready for handover to the contractor or, in the event of a contractually agreed trial run, ready for such a trial run to be carried out. In the event of additional or extended orders placed at a later date, or where additional installation work is required, the agreed installation deadline shall be extended accordingly.

7.3 Events of force majeure entitle FREY – even whilst in default – to postpone the installation work for the duration of the hindrance. Force majeure shall include all circumstances for which FREY is not responsible and which temporarily render the provision of installation services impossible or unreasonably difficult, in particular lawful strikes or lockouts, delays in FREY’s own supply for which the contractor is not responsible, official measures, import and export bans, shortages of energy and raw materials, and war. FREY shall inform the contractor of this without delay.

7.4 If the hindrance referred to in clause 7.3 above lasts for more than two months, the contractor shall be entitled, after setting a reasonable grace period, to withdraw from the contract if he can demonstrate that, due to the delay, the outstanding performance of the contract is no longer of interest to him.

7.5 If circumstances for which the contractor is responsible result in waiting times, the agreed installation period or daily travel times being exceeded, or the contractor having to make multiple journeys, any resulting postponements shall not constitute a delay on the part of FREY. The contractor shall bear the additional costs incurred as a result, calculated on a time and materials basis in accordance with the applicable installation rates.

7.6 If installation is interrupted due to circumstances for which the contractor is responsible, the risk in respect of the installation work already carried out shall pass to the contractor for the duration of the interruption.

7.7 If an agreed installation deadline is exceeded without there being a reason as specified in clause 7.3 above, the contractor must grant FREY a reasonable grace period of at least two weeks in writing. If FREY also fails to meet this grace period through its own fault, the Contractor shall be entitled to withdraw from the contract, but not to claim damages for non-performance or delay, unless FREY is liable in accordance with clause 10.

 

8. ACCEPTANCE

8.1 As soon as FREY has completed the installation and brought the delivered item into a mechanically and electrically functional condition, or once any contractually stipulated testing of the installed delivered item has taken place, FREY shall notify the contractor thereof and, referring to the deemed acceptance under this clause 8.1, shall request acceptance. FREY and the Contractor shall draw up a report on the acceptance, which must be signed by both parties. The Contractor must inspect the installation work in full within a period of two weeks and either declare acceptance to FREY in writing or notify FREY in writing of any defects found. If the Contractor does not make any statement within the acceptance period, the installation work shall be deemed to have been accepted.

8.2 If the installation proves not to be in accordance with the contract, FREY shall be obliged to remedy the defect at its own expense. This shall not apply if and to the extent that the defect is of no significance to the contractor’s interests or is attributable to a circumstance for which the contractor is responsible. In the event of a minor defect, the customer may not refuse acceptance.

8.3 Once the defects have been rectified, FREY shall again notify the contractor that the installation has been completed. The Contractor shall inspect the installation work within a period of five working days. If the reported defects have been rectified and no further defects arise that prevent the use of the delivered item in whole or in part, the Contractor must declare acceptance in writing within this new acceptance period. If the Contractor does not make such a declaration within this new acceptance period, the installation work shall be deemed to have been accepted.

8.4 Acceptance shall in any event be deemed to have taken place once the contractor begins to use the installed goods.

8.5 FREY expressly points out that the Contractor’s acceptance of the goods does not automatically entitle the Contractor to commission and use them. The goods may only be commissioned once the Contractor has complied with all applicable legal and/or regulatory requirements.

 

9. WARRANTY

9.1 The contractor shall be solely responsible for deciding how to use the items supplied by FREY or any other services provided. Unless FREY has confirmed in writing that the items possess specific properties or are suitable for a contractually specified purpose, any advice on their application shall in all cases be non-binding.

9.2 If defects in the installation work carried out by FREY come to light after acceptance, the contractor must notify FREY of this in writing without delay. FREY is entitled and obliged to rectify the defect. The contractor must allow FREY reasonable time and opportunity to identify and rectify the defect. Only in urgent cases relating to operational safety and to prevent disproportionately large damage – of which FREY must be notified immediately – or if FREY is in default with regard to rectifying the defect, shall the contractor be entitled to rectify the defect itself or have it rectified by third parties and to demand reimbursement of the necessary costs from FREY.

9.3 If FREY fails to fulfil its obligation to remedy the defect, and if the contractor sets FREY a reasonable grace period stating that it will refuse to accept the rectification of the defect once the period has expired, the contractor may, upon expiry of the period, reduce the agreed price or withdraw from the contract. The same applies if the rectification has failed or if rectification is impossible. Further claims for damages shall only arise in accordance with the provisions of Clause 10.

9.4 FREY’s warranty does not cover natural wear and tear, nor does it cover damage arising after acceptance, in particular for the following reasons: unsuitable or improper use; faulty installation or commissioning by the contractor or third parties; damage caused by other trades; or modifications or repairs carried out without FREY’s authorisation.

9.5 The limitation period for warranty claims is twelve months. It begins upon the contractor’s declaration of acceptance or, in the event of the contractor’s delay in acceptance, upon the expiry of the acceptance period.

10. LIMITATION OF LIABILITY, INDEMNITY

10.1 FREY shall be liable without limitation for wilful misconduct and gross negligence.

10.2 FREY shall only be liable for slight negligence insofar as a breach involves a duty whose fulfilment is essential to the proper performance of the order or contract (the Contract) and on whose observance the contractor may reasonably rely. In such cases, FREY’s liability shall be limited to the foreseeable damage typical for such a contract.

10.3 The limitations and exclusions of liability set out in this clause 10 shall not apply to claims arising under the Product Liability Act or to damages resulting from injury to life, limb or health.

10.4 Where FREY’s liability is excluded or limited, this shall apply mutatis mutandis to the personal liability of FREY’s officers, employees, agents and vicarious agents.

10.5 The Contractor’s claims for damages shall become time-barred one year after the date on which the damaging event came to light. This shall not apply to claims arising from wilful misconduct or gross negligence, to damages resulting from injury to life, limb or health, or to claims under the Product Liability Act.

10.6 The Contractor shall, upon first request, indemnify FREY, its officers, employees, agents and vicarious agents against any claims by third parties arising against FREY and/or the aforementioned persons as a result of a culpable breach of duty by the Contractor. The Contractor shall reimburse FREY and the aforementioned persons for all necessary and reasonable expenses incurred in connection with the defence of such claims.

 

11. ASSIGNMENT; RIGHTS OF RETENTION; SET-OFF

11.1 The Contractor is not entitled to assign its claims against FREY arising from this contract. This shall not apply where Section 354a of the German Commercial Code (HGB) applies.

11.2 The contractor shall only be entitled to set off claims insofar as its counterclaims are undisputed or have been established by a final and binding court decision.

11.3 The same applies to rights of retention and refusal to perform under Sections 320 and 273 of the German Civil Code (BGB). The contractor may only exercise such rights if they arise from the same contractual relationship. In an ongoing business relationship, each individual order is deemed to be a separate contract.

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

12.1 Should any individual provisions or parts of these General Terms and Conditions be or become invalid, this shall not affect the validity of the remaining provisions. The invalid provision shall be replaced by an agreement that most closely reflects the purpose of the contract and the intentions of the parties.

12.2 The language of the contract is German.

12.3 In the event of any doubt regarding the wording of these General Terms and Conditions, the German-language version shall prevail.

12.4 The exclusive place of jurisdiction is Munich. However, FREY is also entitled to bring proceedings against the contractor at the contractor’s general place of jurisdiction.

12.5 The law of the Federal Republic of Germany shall apply exclusively. The application of German private international law and the United Nations Convention on Contracts for the International Sale of Goods (CISG) is excluded.

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