GENERAL CONDITIONS FOR THE DELIVERY AND ASSEMBLY OF MECHANICAL, ELECTRICAL AND ELECTRONIC PRODUCTS Rellingen, May 2018
PREAMBLE
1. These General Conditions will apply if the parties agree to them whether in writing or otherwise. Changes or deviations from them must be agreed in writing.
DEFINITIONS
2. In these General Conditions, the following terms will have the following meanings:
- "Contract" means the agreement reached in writing between the parties for the delivery and performance of the Work and all annexes, including any agreed written additions and supplements to said documents;
- "Contract Price" means the price for the work. If assembly is to be performed within a specified period and has not been completed by then, the Contract Price within the meaning of Articles 21, 43, 44 and 51 will be composed of the price of the Deliverable plus 10 per cent or such other percentage as the parties may agree;
- "Gross Negligence" means any act or omission in which the party concerned either failed to exercise due diligence as to the occurrence of serious consequences, which a responsible party would normally have foreseen, or deliberately disregarded the consequences of such act or omission;
- "in writing" means by a document signed by both parties or by letter, fax, email or any other form agreed by the parties;
- "Deliverable": machines, accessories, materials, articles, documentation, software and all other items to be delivered by the manufacturer in accordance with º of the contract;
- "Assembly Location" means the place where the Deliverable is to be installed, including adjacent areas necessary for the unloading, storage and internal transport of the Deliverable and the assembly equipment;
- "Work" means the deliverable, the assembly and any other works to be performed by the Supplier/processor in accordance with º of the contract. If the contract provides for the acceptance of the Work in several sections intended for independent use, these Conditions will apply separately to each section. The term "Work" then refers to the section in question.
PRODUCT INFORMATION
3. The details and information contained in general product documentation and price lists are only binding insofar as the contract expressly refers to them in writing.
DRAWINGS AND TECHNICAL INFORMATION
4. If one party makes available to the other party, before or after the conclusion of the contract, drawings and technical documents relating to the Work, they will remain the property of the party providing them.
If a party receives drawings, technical documents or other technical information, it may only use them for the intended purpose except with the consent of the other party. They may not be used for any other purpose, copied, reproduced, distributed or disclosed to any third party without the consent of the providing party.
5. At the latest at the time of acceptance, the Supplier will provide free of charge information and drawings enabling the Purchaser to commission, use and maintain the Work. The agreed number of such instructions and drawings will be handed over, but at least one copy each. The Supplier is not required to procure workshop drawings for the Deliverable or for spare parts.
PRE-SHIPMENT TESTS
6. Unless otherwise agreed, tests of the Deliverable agreed in the contract prior to shipment will be performed at the place of production during normal working hours.
If the contract does not contain provisions on technical requirements, the tests will be performed in accordance with the general practice of the industrial sector concerned in the country of production.
7. The Supplier will notify the Purchaser in writing of such tests in sufficient time to enable the Purchaser to be represented at the tests. If the Purchaser is not represented, he will receive a test report from the Supplier, the correctness of which he can no longer dispute.
8. If the Deliverable is found to be non-compliant during the tests, the Supplier will immediately remedy any defect in order to restore the Deliverable to its contractual condition. The Purchaser may only demand that the tests be repeated in the event of material defects.
9. The Supplier will bear all costs for tests performed prior to dispatch of the Deliverable. However, the Purchaser will bear all travel and resident expenses incurred in connection with the tests for his representatives.
PRELIMINARY WORK AND WORKING CONDITIONS
10. The Supplier will supply in good time the drawings for the installation of the Deliverable and all instructions necessary to install the appropriate foundations, to bring the Deliverable and the necessary equipment to the Assembly Location and to establish all necessary connections to the Work.
11. The Purchaser will perform preparatory work in good time so that the conditions required for the assembly of the Deliverable and for the proper use of the works are met. This does not apply to preparatory work to be performed by the Supplier in accordance with the contract.
12. The Purchaser will perform the preparatory work under Clause 11 in accordance with the drawings and instructions supplied by the Supplier under Clause 10. In any case, the Purchaser must ensure that the foundations are adequately load-supporting. If the Purchaser is required to transport the Deliverable to the Assembly Location, he must ensure that the Deliverable arrives before the agreed start of installation.
13. The Supplier will bear all costs of any necessary remedial action required as a result of incorrect or incomplete drawings or instructions under Clause 10, provided that he discovers the defectiveness or incompleteness within the period referred to in Clause 59 or is notified of them in writing within that period.
14. The Purchaser must ensure that:
a) the Supplier's personnel have the opportunity to start the Work according to the agreed schedule and to work during normal working hours. The Work may be performed outside normal working hours if it appears necessary to the Supplier and if the Purchaser has been informed of it in writing within a reasonable period of time;
b) he informs the Supplier in writing in good time before the start of installation of all relevant safety regulations applicable at the Assembly Location. The installation will not be performed in an unhealthy or dangerous environment. All necessary safety and protective measures must be taken before starting installation and must be maintained during installation;
c) the Supplier's personnel have the opportunity to be adequately accommodated and catered for in the vicinity of the Assembly Location and have access to sanitary facilities and medical care of international standard;
d) he will make available to the Supplier free of charge and in good time at the Assembly Location all necessary cranes, lifting equipment and means of transport within the Assembly Location, ancillary equipment, machinery, materials and supplies (including petrol, oils, grease and other materials, gas, water, electricity, steam, compressed air, heating, light, etc.) as well as the Purchaser's measuring and testing equipment available at the Assembly Location. The Supplier will inform the Purchaser in writing at the latest one month before the agreed start of installation what cranes, lifting equipment, measuring and testing devices and means of transport he requires within the Assembly Location;
e) he will provide the Supplier with adequate office space at the Assembly Location free of charge, complete with telephone and Internet connections;
f) to protect the Deliverable, the tools and equipment required for assembly and the personal belongings of the Supplier's personnel against theft and wear and tear, he will provide the Supplier with the necessary storage facilities free of charge;
g) the access routes to the Assembly Location will be suitable for the necessary transport of the Supplier's Deliverable or equipment.
15. At the timely request of the Supplier, the Purchaser will make available to the Supplier, free of charge, any assistants and operating personnel agreed in the contract or reasonably required for the purposes of the contract. The persons made available by the Purchaser in accordance with º of this clause will provide their own tools. The Supplier will not be liable for such labour provided by the Purchaser nor for their actions or omissions.
16. On request, the Purchaser will comprehensively assist the Supplier in the import and re-export of the Supplier's equipment and tools; this will also apply to customs formalities. This support will be provided at no additional cost.
17. The Purchaser will provide the necessary support to ensure that the Supplier's personnel receive visas and other official entry, exit or work permits in good time and any tax certificates required in the Purchaser's country as well as access to the Assembly Location. This support will be provided at no additional cost.
18. At the latest on notification by the Supplier that the Deliverable is ready for dispatch from the place of production, each party will appoint in writing a person to represent it at the Assembly Location during the Work.
These representatives will be present at the Assembly Location or near the Assembly Location during normal working hours. In the absence of any agreement to the contrary in the contract, the representatives will have full powers to take action on behalf of the respective party insofar as the matters concerned fall within the scope of the assembly work. If reference is made in these General Conditions to the fact that a notification must be made in writing, the representative will always be entitled to accept such a notification on behalf of the party represented by him.
NON-FULFILMENT BY THE PURCHASER
19. If the Purchaser is able to foresee that he will not fulfil his duties as necessary for the performance of the assembly in due time, in particular in accordance with the conditions of Clauses 11, 12 and 14-17, he will inform the Supplier of this immediately and in writing stating the reason and, if possible, inform the Supplier of the time at which he will be able to fulfil his duties.
20. If the Purchaser does not fulfil his duties under the conditions of Clauses 11, 12 and 14-17 in a timely and error-free manner, the following will apply, without prejudice to the rights of the Supplier under Clause 21:
a) The Supplier may, at his sovereign discretion, perform the Purchaser's duties himself or have them performed by a third party or take other appropriate measures under the circumstances to avoid or limit the effects of the Purchaser's failure to perform.
b) The Supplier may suspend performance of the contract in whole or in part. He must inform the Purchaser immediately and in writing of the suspension.
c) If the Deliverable is not yet at the Assembly Location, the Supplier will store the Deliverable at the risk of the Purchaser. At the request of the Purchaser, the Supplier will insure the Deliverable.
d) The Purchaser will pay to the Supplier that part of the Contract Price which would have been due without the delay.
e) The Purchaser will excuse the Supplier for all reasonable costs not covered by Clauses 47 or 48 if such costs are incurred by the Supplier as a result of measures taken under Clauses a), b) or c) of this clause.
21. If acceptance is prevented by the Purchaser's failure to perform under Clause 20 and if such failure is not due to any of the circumstances referred to in Clause 73, the Supplier may further require the Purchaser in writing to remedy its failure within a final reasonable period.
If, for any reason not attributable to the Supplier, the Purchaser fails to remedy his default within such period, the Supplier will be entitled to rescind the contract in whole or in part by notice in writing. The Supplier will then be entitled to compensation for the damage he has suffered as a result of the Purchaser's failure to perform; this will also apply to indirect damage and consequential damage. The compensation will not exceed the part of the Contract Price which corresponds to the part of the Work in respect of which the contract is terminated.
REGIONAL LAWS AND REGULATIONS
22. The Supplier will ensure that the Work are performed and otherwise comply with all laws and regulations applicable to the Work. At the Supplier's request, the Purchaser will provide the Supplier in writing with relevant information on these laws and regulations.
23. The Supplier will perform all conversion work, etc., which becomes necessary in the event of changes to the laws and regulations referred to in Clause 22 or in the event of changes to generally accepted design principles, provided that such a change occurs between the submission date of the offer and acceptance. The Purchaser will bear all separately incurred costs as well as all other consequences resulting from such changes, in particular for the conversion work.
24. If the parties do not agree on the costs incurred separately and the further consequences of a change in the laws and regulations referred to in Clause 22, the Supplier will be compensated for the conversion work on the basis of the hours worked.
CHANGES
25. Subject to the provisions of Clause 29, the Purchaser will be entitled to demand changes in the scope, design and construction of the Work up to the time of acceptance of the Work. The Supplier may propose such changes in writing.
26. Requests for changes will be submitted to the Supplier in writing and will describe the change in detail.
27. Immediately after receipt of a request for change or after having made a proposal for change, the Supplier will notify the Purchaser in writing whether and, if so, how the change can be performed and what changes in the Contract Price, Acceptance Period and other provisions of the contract this may entail.
The Supplier will also notify the Purchaser of any changes if such changes are attributable to changed laws and regulations under Clause 22.
28. If acceptance is delayed due to disagreements between the parties regarding the consequences of changes, the Purchaser will pay that part of the Contract Price which would have become due if acceptance of the Work had not been delayed.
29. Subject to the provisions of Clause 23, the Supplier will not be required to make any changes requested by the Purchaser until the parties have agreed the effects on the Contract Price, the Acceptance Period and the other provisions of the contract.
TRANSFER OF RISK
30. The risk of loss of or damage to the Deliverable will pass to the Purchaser in accordance with the agreed commercial clauses, which will be interpreted in accordance with the "INCOTERMS" valid at the time of conclusion of the contract. In the absence of a special delivery clause in the contract, the delivery of the Deliverable "Free Carrier" (FCA) will be made to the place designated by the Supplier.
Any risk of loss of or damage to the Work not covered by the first paragraph of this clause will pass to the Purchaser on acceptance of the Work.
After the transfer of risk, the Purchaser will bear the risk for any loss or damage of the Deliverable or the Work, unless such loss or damage is attributable to the negligent conduct of the Supplier.
ACCEPTANCE TESTS
31. Unless otherwise agreed, acceptance tests will be performed after the completion of the installation in order to determine whether the Work complies with the contractual provisions with regard to acceptance.
The Supplier will inform the Purchaser in writing that the Work are ready for acceptance. This notification will contain a date for the acceptance tests which will give the Purchaser sufficient time to prepare for the tests and to be represented at them.
The Purchaser will bear all costs for the acceptance tests.
However, the Supplier will bear all costs incurred by its personnel and other representatives.
32. The Purchaser will make available at his sovereign expense energy, lubricants, water, fuels, raw materials and all other goods insofar as they are necessary for performing the acceptance tests and the final adjustments in the preparation for the test. He will also set up equipment at his own expense and make available the personnel or aids necessary for performing the acceptance tests.
33. If the Purchaser has received a notice under Clause 31 and fails to comply with his duties under Clause 32 or otherwise prevents the performance of the Acceptance Tests, the Tests will be deemed to have been successfully performed on the date specified as the date for the Acceptance Tests in the Supplier's notice.
34. The acceptance tests will be performed during normal working hours. If the contract does not contain any provisions on technical requirements, the tests will be performed in accordance with the general practice of the sector concerned in the country of the Purchaser.
35. The Supplier will draw up a record of the acceptance tests. He will send this record to the Purchaser. If the Purchaser is not represented at the acceptance tests after having received notification under Clause 31, he can no longer dispute the correctness of the acceptance record.
36. If the Work prove to be non-compliant during the acceptance tests, the Supplier will remedy any defect without undue delay. At the immediate written request of the Purchaser, new tests will be performed in accordance with º Clauses 31-35. This will not apply in cases of insignificant defects.
ACCEPTANCE
37. The Work will be deemed accepted,
a) if the acceptance tests have been successfully performed or are deemed to have been successfully performed under Clause 33; or
b) if the Purchaser has received written notice from the Supplier that the Work have been completed, provided that the Work comply with the contractual provisions relating to Acceptance, but only in cases where the Parties have not agreed to perform Acceptance Tests.
Minor defects which do not impair the performance of the Work will not constitute grounds for refusal of acceptance.
The Supplier's duty to assemble the Deliverable at the Assembly Location will be deemed met on acceptance of the Work under Clause 37; any duties to remedy minor defects will remain unaffected thereby.
38. Prior to acceptance, the Purchaser will not be entitled to use the Work or any part of them. Otherwise, the Work will be deemed accepted unless the written consent of the Supplier has been obtained. The Supplier will then no longer be required to perform acceptance tests.
39. After acceptance of the Work in accordance with º Clause 37 or 38, the period described in Clause 59 will commence. At the written request of the Supplier, the Purchaser will issue a certificate confirming the date of acceptance of the Work. If the Purchaser does not nevertheless issue such a certificate, this will not affect the acceptance under º Clauses 37 and 38.
DELAYS BY THE SUPPLIER
40. If, instead of an acceptance date, the parties have agreed on a period of time on the expiry of which acceptance is to take place, such period will commence as soon as the contract has been concluded and all agreed preconditions incumbent on the Purchaser have been met, e.g. with regard to official formalities, as well as all payments due at the time of conclusion of the contract or any agreed securities.
41. If the Supplier is able to anticipate that he will not be able to fulfil his duties for acceptance by the acce ptance date, he will immediately inform the Purchaser in writing, giving him the reasons for his failure to do so and, if possible, the expected date of acceptance.
If the Supplier fails to give such notice, the Purchaser will be entitled to claim compensation for any additional costs incurred as a result of the failure to receive such notice.
42. The Supplier is entitled to an extension of the acceptance period if a delay is due to:
a) a circumstance defined in Clause 73, or
b) conversion work in accordance with º Clause 23 or
c) changes in accordance with Clauses 25-29 or
d) the cessation of performance under º Clauses 20, 51 or 76
or
e) any action or omission by the Purchaser or any other circumstance attributable to the Purchaser.
The period will be extended as appropriate to the circumstances. This provision will apply irrespective of whether the reason for the delay occurs before or after the agreed acceptance date.
43. If the Work is not completed on the agreed acceptance date, the Purchaser will be entitled to payment of a lump-sum compensation from the date on which acceptance should have taken place. The compensation amount will be fixed at 0.5 per cent of the contract value for each commenced week of delay. The compensation amount may not exceed 7.5% of the contract value.
If only part of the Work is delayed, the compensation amount will be determined on the basis of the part of the Contract Price which corresponds to the part of the Work which cannot be used as intended by the delay.
The compensation amount will become due on written assertion by the Purchaser, but in no case prior to acceptance or termination of the contract under Clause 44.
The Purchaser forfeits his right to payment of the lump-sum compensation if he does not assert his claim in this respect within six months after acceptance should have taken place.
44. If the length of the delay entitles the Purchaser to claim the maximum compensation amount under Clause 43 and if the Work are still not ready for acceptance, the Purchaser may set the Supplier in writing a final reasonable period of at least one week for completion of the Work.
If the Supplier fails to complete the Work within such final period and fails to do so for a reason not attributable to the Purchaser, the Purchaser may, by notice in writing to the Supplier, withdraw from the contract in respect of that part of the Work which, as a result of the delay, cannot be used as intended by the Supplier.
If the Purchaser withdraws from the contract, he will be entitled to compensation for any loss suffered as a result of the delay caused by the Supplier, including indirect loss and consequential loss. The total amount of compensation, including the compensation amount under Clause 43, will not exceed 15 per cent of the part of the Contract Price corresponding to the part of the Work in respect of which the contract was terminated.
The Purchaser will also be entitled to terminate the contract by notice in writing to the Supplier if it is clear from the circumstances that acceptance of the Work will be delayed for such period as would entitle the Purchaser to the maximum compensation amount under Clause 43. If the contract is terminated for this reason, the Purchaser will be entitled to the maximum compensation amount as well as compensation in accordance with º para. 3 of this clause 44.
45. In the event of a delay by the Supplier, the Purchaser will not be entitled to any further claims in excess of the compensation amount under Clause 43 and to withdrawal from the contract with limited compensation under Clause 44. All other claims against the Supplier with regard to delay are excluded, except in the case of Gross Negligence by the Supplier.
PAYMENT
46. Unless otherwise agreed, payment will be made within thirty days of the invoice date as follows:
a) For assembly according to time calculation:
- one third of the agreed price of the Deliverable on the conclusion of the contract,
- one third, when the Supplier informs the Purchaser that the Deliverable or the essential part of the Deliverable is ready for shipment from the place of production, and
- the last third on arrival of the Deliverable at the Assembly Location.
Payments for assembly are to be made against monthly invoices.
b) If the assembly is included in the Contract Price at a flat rate:
- 50 per cent of the Contract Price at the time of conclusion of the contract,
- 30 per cent if the Supplier notifies the Purchaser that the Deliverable or an essential part of them is ready for dispatch from the place of production,
- the remaining part of the Contract Price on acceptance.
47. The following items will be invoiced separately for assembly according to time calculation:
a) any travel expenses incurred by the Supplier for his personnel and the cost of transporting his equipment and personal luggage to an appropriate extent in accordance with the nature and class of the means of transport, if any, agreed in the contract;
b) the daily allowance, including reasonable daily allowances for each day of absence of the assembly personnel from their place of residence, including rest days and public holidays; daily allowances will also be paid in the event of prevention due to illness or accident;
c) the hours worked, which will be calculated on the basis of the hours confirmed as worked time by the Purchaser's signature on the respective hourly receipts. Overtime, Sunday, holiday and night work will be charged at special rates. The rates will be based on the agreement made in the contract; in the absence of such an agreement, they will be based on the rates normally demanded by the Supplier. In the absence of agreement to the contrary, the hourly rates include the usual wear of the tools and light equipment of the Supplier;
d) the time required for:
- preparation and formalities for outward and return journeys of the Supplier's personnel,
- outward and return journeys and other journeys during which the personnel are required to make in accordance with applicable law, applicable provisions or collective agreements in the country of the Supplier,
- the Supplier is entitled to the daily return journeys between the accommodation and the Assembly Location if they exceed half an hour per one-way journey and there is no adequate accommodation closer to the Assembly Location,
- bridging of times when Work is prevented due to circumstances beyond the control of the Supplier;
e) contractual expenses incurred by the Supplier for the provision of equipment by him and, if applicable, a fee for the use of his heavy tools;
f) taxes and duties to be paid by the Supplier in the country of assembly from the invoice amount;
g) costs which could not reasonably have been foreseen by the Supplier and which are due to circumstances outside the control of the Supplier;
h) additional costs due to mandatory social legislation in the country of the Purchaser;
i) costs, expenses and time spent on additional work not attributable to the Supplier. Costs on a time basis will be calculated on the basis of the rates set out in this clause 47 (c).
48. In the case of assembly at a lump sum price, the Contract Price will include all items listed under Clause 47 (a) to (e) inclusive. Items listed in Clause 47 (f) to (i) inclusive are not included in the Contract Price and must therefore be accounted for separately.
Costs on a time basis will be calculated on the basis of the rates set out in Clause 47 (c).
49. If assembly is delayed for reasons attributable to the Purchaser, the Purchaser will indemnify the Supplier for any additional costs incurred, including but not limited to
a) waiting times and additional travel times
b) costs and additional work due to delay, including dismantling, securing and installation of assembly equipment;
c) additional costs, in particular costs incurred by the Supplier as a result of his equipment being tied to the Assembly Location for longer than anticipated;
d) additional allowances and travel expenses of the Supplier's personnel;
e) additional financing and insurance costs;
f) other documented costs incurred by the Supplier due to deviations from the assembly programme. Costs on a time basis will be invoiced on the basis of the rates in accordance with º Clause 47 (c).
50. Irrespective of the means of payment used, payment will not be deemed to have been made until the amount due has been irrevocably credited to the Supplier's account.
51. If the Purchaser is in arrears with his payments, the Supplier may demand interest on arrears and reimbursement of collection costs from the due date. Unless otherwise agreed, an interest rate of 8 percentage points above the rate of the marginal lending facility of the European Central Bank will be deemed to have been agreed. The recovery costs to be reimbursed will be 1% of the amount for which arrears interest is due.
In the event of delayed payment or the late provision of an agreed security by the Purchaser, the Supplier may, after giving written notice to the Purchaser, suspend performance of his own duties until payment has been made or the security has been provided.
If the Purchaser is more than three months in arrears with payments due, the Supplier may withdraw from the contract by giving written notice to the Purchaser and, in addition to interest and reimbursement of recovery costs under this clause 51, may claim compensation from the Purchaser for any loss sustained. Such compensation will not exceed the Contract Price.
RETENTION OF TITLE
52. The Deliverable will remain the property of the Supplier until payment has been made in full, including payment for assembly of the Deliverable, insofar as such retention of title is effective under the respective law.
At the request of the Supplier, the Purchaser will provide him with comprehensive support in his efforts to protect the Supplier's title to the Deliverable.
The retention of title will not affect the provisions on the transfer of risk as set out in Clause 30.
LIABILITY FOR DAMAGE TO PROPERTY BEFORE ACCEPTANCE
53. The Supplier will be liable for all damage to the Work which occurs prior to the transfer of risk to the Purchaser. This will apply irrespective of the cause of the damage, unless the damage was caused by the Purchaser himself or by a third party for whom the Purchaser is responsible in connection with the performance of this contract. Even in cases in which the Supplier is not liable for damage to the Work in accordance with this clause, the Supplier will nevertheless remedy the damage at the Purchaser's request and then at the Purchaser's expense.
54. The Supplier's liability for damage to the Purchaser's property until acceptance of the Work will be limited to cases in which the Supplier or a third party for whom the Supplier is responsible in the performance of the contract has caused the damage by negligence. However, the Supplier will in no event be liable for loss of production, loss of profit or other consequential or indirect damages.
LIABILITY FOR DEFECTS
55. Under Clauses 56-71, the Supplier will remedy any defect or deviation (hereinafter "Defect(s)") in the Work resulting from a defect in design, material or workmanship.
56. The Supplier will not be liable for defects based on materials provided by the Purchaser or on a design prescribed or specified by the Purchaser.
57. The Supplier is only liable for such defects that occur under the contractually stipulated operating conditions and in the context of proper use of the Deliverable.
58. The Supplier will not be liable for defects attributable to circumstances occurring after the transfer of risk, such as defects due to poor maintenance or faulty repair by the Purchaser or to changes without the Supplier's written consent. The Supplier is liable neither for normal wear and tear nor for deterioration.
59. The Supplier's liability is limited to defects in the Deliverable which occur within one year of acceptance and is limited to the new machines in the Deliverable. For the used, generally overhauled machines, liability for defects occurring after acceptance is limited to 6 months. If the use of the Work exceeds the agreed context, the period will be shortened accordingly. If acceptance is delayed for reasons attributable to the Purchaser, the Supplier's liability for defects in new machines will end, in the absence of any provision to the contrary in Clause 60, no later than 18 months after the supply of the Deliverable and for defects in used and generally overhauled machines after 6 months.
60. If a defect is repaired in a part of the Work, the Supplier will be liable for defects of the replaced or repaired parts under the same conditions as for the original Work. For all other parts of the Work, the period referred to in Clause 59 will be extended only to the extent that and as long as the interruption of use of the Work caused by the defect continues.
61. The Purchaser must notify the Supplier of any defects immediately and in writing. Such notice of defects must in any case be submitted within two weeks of expiry of the period specified in Clause 59 or the extended deadline(s) in accordance with point 60.
The complaint must describe the defect.
If the Purchaser fails to give notice of the defect to the Supplier in writing within the period specified in para. 1 of this clause, the Purchaser will forfeit his right to remedy the defect.
If the defect could cause damage, the Purchaser will immediately notify the Supplier in writing. The Purchaser will bear the risk for damage to the Work resulting from failure to notify the Supplier. The Purchaser will take reasonable measures to limit the damage and in this respect follow the instructions of the Supplier.
62. On receipt of the notice of defect under Clause 61, the Supplier will remedy the defect immediately and at his sovereign expense under Clauses 55-71. The remedy of defects must be timed in such a way that the processes of the Purchaser are not unnecessarily impaired.
In principle, the defect will be remedied at the Assembly Location if the Supplier, after weighing the interests of both parties, does not consider it more suitable to send the Deliverable or the defective part to him or to another location designated by him.
If the work to remedy the defect is performed at the Assembly Location, º Clauses 14-17 and 54 will apply accordingly.
If the defect can be remedied by replacing or repairing a defective part and if the removal and installation of the part does not require special expertise, the Supplier may demand that the defective part be sent to him or to another location specified by him. In this case, the Supplier's duty in respect of the defect will cease on delivery of the properly repaired or replaced part to the Purchaser.
63. The Purchaser will, at his own expense, ensure access to the Work and any intervention in respect of equipment not belonging to the Work to the extent necessary to remedy the defect.
64. In the absence of an agreement to the contrary, the necessary transport of the Deliverable or individual parts of it to and from the Supplier in connection with the rectification of defects for which the Supplier is liable will be at the Supplier's risk and expense. The Purchaser must follow the Supplier's instructions during such transport.
65. Unless otherwise agreed, the Purchaser will bear all additional costs incurred by the Supplier in remedying the defect due to the fact that the location of the Work differs from the Assembly Location.
66. Replaced defective parts are to be made available to the Supplier and become his property.
67. If the Purchaser has given notice of a defect under Clause 61 and there is no defect for which the Supplier is liable, the Purchaser will reimburse the Supplier for the costs incurred by the Supplier in giving such notice.
68. If the Supplier fails to comply with his duties under Clause 62, the Purchaser may give the Supplier in writing a final reasonable period of at least one week within which the Supplier must comply with his duties.
If the Supplier does not fulfil his duties within this final period, the Purchaser may perform the necessary repairs himself or have them performed by a third party at the expense and risk of the Supplier.
If the repair was successfully performed by the Purchaser or a third party, all claims of the Purchaser with respect to this defect against the Supplier will be settled by reimbursement of the reasonable costs incurred by the Purchaser.
69. If the repair referred to in Clause 68 fails:
a) the Purchaser may claim a reduction in the Contract Price equal to the reduced value of the Work, provided that such reduction will in no case exceed 15 per cent of the Contract Price; or, if the defect is so fundamental that the Purchaser loses interest in the contract in respect of the Work or a substantial part of them,
b) the Purchaser may withdraw from the contract with respect to the part of the Work which cannot be used as intended due to the defect by giving written notice to the Supplier. The Purchaser will then be entitled to compensation for his losses, costs and damages up to a maximum of 15 per cent of the part of the Contract Price corresponding to the part of the Work in respect of which the contract was terminated.
70. Notwithstanding the provisions of Clauses 55-69, the Supplier's liability for defects in new parts of the Work will be limited to one year from the end of the period of liability specified in Clause 59 or the end of any different period of liability agreed by the Parties. In the case of overhauled machines, the liability period is limited to a maximum of 6 months.
71. Subject to the provisions of Clauses 55-70, the Supplier will not be liable for defects. This applies to any damage caused by the defect, such as loss of production, loss of profit and other indirect damage. The Supplier's limitation of liability does not apply to Gross Negligence.
DIVISION OF LIABILITY FOR DAMAGE CAUSED BY THE WORK
72. The Supplier will not be liable for damage to property caused by the Work after acceptance and in the possession of the Purchaser. In addition, the Supplier accepts no liability whatsoever for damage to products manufactured by the Purchaser or to goods containing a product manufactured by the Purchaser.
If the Supplier is held liable by a third party for damage to property within the meaning of the previous clause, the Purchaser will indemnify and defend the Supplier.
If a third party asserts a claim for damages against one of the parties described in this clause, this party will notify the other party of this immediately and in writing.
The Supplier and the Purchaser will each be required to have themselves summoned by a court or arbitral tribunal which will examine the claims for damages brought against one of the parties on account of the damage allegedly caused by the Work. The liability between the Supplier and the Purchaser will nevertheless be subject to the provisions of Clause 78.
The Supplier's limitation of liability under the first para. of this clause will not apply in the event of Gross Negligence.
FORCE MAJEURE.
73. Each party will be entitled to suspend his contractual duties to the extent that such performance is made impossible or unreasonably difficult by force majeure, which will include:
industrial disputes and all circumstances beyond the control of the parties such as fire, war, general mobilization, insurrection, requisition, confiscation, embargo, restrictions on energy consumption, currency and export restrictions, epidemics, natural disasters, extreme natural phenomena, acts of terrorism and defective or delayed deliveries by subcontractors due to the circumstances listed in this clause.
If a circumstance listed in this clause occurs before or after the conclusion of the contract, it will only entitle the Purchaser to discontinue the contract to the extent that its effects on the fulfilment of the contract were not foreseeable at the time of conclusion of the contract.
74. The party citing force majeure must inform the other party immediately and in writing of the occurrence and end of such circumstances. If either party fails to give such notice, the other party will be entitled to claim compensation for any additional costs it incurs as a result of not having received such notice.
If force majeure prevents the Purchaser from fulfilling his contractual duties, he will compensate the Supplier for the costs incurred in securing and protecting the Work.
75. Notwithstanding any effect set out in these General Conditions, either party will have the right to withdraw from the contract by notice in writing to the other party if performance of the contract is suspended under Clause 73 for more than six months.
FORESEEABLE NON-COMPLIANCE
76. Notwithstanding any provision to the contrary in these General Conditions regarding suspension of performance, either party will have the right to suspend performance of its duties under the contract if it is clear from the circumstances that the other party will not perform its duty. The party suspending performance of its contractual duties will notify the other party of this immediately and in writing.
CONSEQUENTIAL DAMAGES
77. Except as otherwise provided in these General Conditions, the liability of either party to the other for loss of production, loss of profit, loss of use, loss of contract or any other consequential or indirect loss will be excluded.
DISPUTES AND APPLICABLE LAW
78. All disputes arising out of or in connection with this contract will be definitively resolved in accordance with the Rules of Conciliation and Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with those Rules.
79. The contract is subject to the substantive law of the country of the Supplier.