General Terms and Conditions of Business for Cleaning Services and Repair and Deposit Services of cotac europe GmbH in Germany
§ 1 Conclusion of contract
Solely these conditions of business apply to contracts entered into with cotac europe GmbH (Contractor) in respect of the scope of services in accordance with Section 2 of these General Terms and Conditions of Business. The Principal's General Terms and Conditions of Business to the contrary are therefore expressly rejected. The Principal's General Terms and Conditions of Business shall not become the content of the contract even if the Contractor has not expressly rejected them.
The Contractor's offers in brochures and advertisements etc. are - including in relation to price details - subject to change without notice and are not binding insofar as an express binding assurance is not made. The Contractor shall take care in researching and calculating its work. On occasion the Contractor will require a little time in this respect. The Principal is therefore bound by its order for five days. If the Contractor does not reject acceptance within three days after receipt of order, confirmation shall be deemed given.
Verbal subsidiary agreements have not been entered into. Adherence to a performance period is conditional on timely deliveries to our company.
§ 2 Scope of performance
The Contractor offers the following services:
Internal tank cleaning
Internal silo cleaning
Internal container cleaning
Internal and external tank wagon cleaning
Internal cleaning of IBC containers
Cleaning of appertaining equipment
Repairing tank containers and auxiliary equipment
Motor vehicle repairs involving lorries, chassis and trailers
Deposit services for container storage and heating including subsidiary work.
The internal cleaning of tanks and all accessory parts of road vehicles, track vehicles and containers is carried out professionally to facilitate use for the next load. A cleaning assignment is drawn up for each tank, whereby tanks with several chambers are deemed a single tank insofar as the same product to be cleaned was contained in all chambers.
The Contractor shall render its services in accordance with the wishes and details specified by the Principal. The Contractor will only be required to take into account requests for alterations and extensions if these are necessary for technical reasons to achieve to the objective set out in the contract. In the event of a considerable change to the Contractor's obligations as per agreement for the purpose of adjustment in line with the Principal's concerns, the Contractor shall invoice the Principal for the respective additional labour input. This also applies to an extensive review as to whether or not and at what conditions the alteration of extension is to be implemented insofar as the Contractor has made reference in that respect.
The Contractor is entitled to make partial deliveries. The Contractor is entitled, without prior approval by the Principal, to render such additional services at the Principal's cost that the Contractor may deem necessary to guarantee the professional execution of the ordered services if the Principal's approval cannot be obtained without this resulting in a delay in the completion of the performance and the price of the additional services does not exceed 30% of the price of the originally ordered services.
§ 3 Prices and payment
The list prices valid at the time of delivery are deemed applicable. Fixed prices shall only apply if the price agreement in an individual case, e.g. on the basis of an offer, neither contains a price increase option or a limit in terms of time of the fixed price agreement. The prices do not include the statutory value added tax. Cleaning agents, material costs and other subsidiary services are not included in the price insofar as nothing to the contrary has been agreed upon.
The Contractor's invoices shall fall due for payment immediately and without deduction. All money transfer costs, in particular bank charges, shall be borne by the Principal. The Contractor is entitled to charge the Principal € 25 for each reminder for overdue invoices in addition to other claims for damages.
Additional services that are not stated in the price list or the offer are to be remunerated separately. This applies, in particular, to additional costs as a result of
a) Necessary use of third-party services,
b) Commissioned test services and
c) Services rendered outside business hours.
If the Principal is in default of payment it shall be required to pay interest on arrears of 8 percentage points above the base-lending rate . Interest on arrears shall apply if the payment period is exceeded and without a reminder. Objections to invoices must be made within 30 days following receipt of the invoice. After that period objections are excluded. The Principal may only set off res judicata or undisputed claims against the Contractor's claims. The Principal may only exercise a right of retention insofar as a counter-claim has become res judicata or is undisputed.
The Principal must expect the Contractor to initially count its payments towards the oldest debts. If costs have already been incurred for bringing an action such as remindering costs, the Contractor may initially count the Principal's payments towards these costs, then towards the interest and lastly towards the primary obligation. The Contractor is entitled to demand advance payments for its services of half the total order value.
§ 4 Reservation of title, right of retention and right of lien
The Contractor reserves the right to ownership of all supplied and installed items up until payment in full of all invoices resulting from the business association.
The Contractor is entitled to exercise a right of retention regarding the surrendered order item until payment in full of the remuneration for the respective order. Such a right of retention also applies to securing the Contractor's claims resulting from earlier orders or from the entire business association.
In the event of non-payment by the Principal, the parties hereby agree that the Contractor shall, in addition to the right of retention, be granted a contractual right of lien regarding the order item that was surrendered to the Contractor for the purpose of rendering the service. This contractual right of lien also applies to securing the Contractor's claims resulting from earlier orders or from the entire business association.
§ 5 Dates, periods and performance hindrances
Delivery dates of periods are provisional and non-binding and are intended merely as general information insofar as they are not expressly stated as having binding force. The effective agreement of binding dates is subject to the written form. If collaboration by the Principal is required for the Contractor's performance, or if such collaboration has been agreed, the delivery time shall be extended by the period in which the Principal has not honoured such an obligation.
In the event of delays resulting from
a) Changes to the Principal's requirements,
b) Problems with third-party products (e.g. cleaning agents or parts made available by the Principal), the delivery or performance date shall be extended accordingly.
Insofar as the Contractor cannot render its contractual services, or cannot render these in good time, as a result of industrial action, force majeure or other circumstances that the Contractor cannot avoid, this shall not result in any disadvantageous legal consequences for the Contractor. If the Principal commissions alterations or additions that are not merely insignificant, dates and periods geared towards the original subject matter of contract shall become inapplicable.
§ 6 Acceptance
The order item is to be accepted by the Principal at the Contractor's business premises insofar as nothing to the contrary is agreed upon. The Principal undertakes to immediately accept the Contractor's services as soon as the Contractor has completed the service and possible additional work and has informed the Principal accordingly. Notification of complaints is to be provided without delay, and a written record of complaints is to be kept. In the case of cleaning services, the Principal is to check the cleaned container and all accessories at the Contractor's premises as to whether or not these are clean.
In the event of default in acceptance, the Contractor may charge the local customary storage fee. The order item may, at the Contractor's discretion, also be stored elsewhere. The cost and risk of storage shall be borne by the Principal. If the Principal fails to honour its obligation to provide immediate notification of defects, the work shall be deemed accepted. The Contractor's services shall be deemed accepted if the Principal removes the order item from the Contractor's company grounds without previously providing notification of defects. The same applies to filling the cleaned container in the case of cleaning services.
§ 7 Obligation to collaborate
The Principal undertakes to make available the necessary data and technical documents in good time and truthfully. In the case of cleaning services this includes, in particular, the previous material in the tank (product to be cleaned), the next proposed loading, technical conditions and special cleaning requirements. Incorrect or incomplete details provided by the Principal shall result in the complete exclusion of liability and guarantee on the part of the Contractor.
The Principal is responsible for sufficient resources and information as part of its obligation to collaborate. It is responsible for adequate skills on the part of its employees from a professional and technical point of view.
Insofar as the Principal provides cleaning agents or materials, parts of tools, it is to ensure that these are made available in sufficient quantities. If the Contractor considers it necessary, the Principal is to provide a chemical analysis of the previous material. The Contractor is not under obligation to review the Principal's details or point out possible incompatibilities insofar as no statutory requirements are violated or the findings are obvious. This also applies to the suitability of the cleaning agents or materials and parts of working tools made available by the Principal.
§ 8 Warranty
The Contractor shall subsequently improve or replace faulty supplies or services during the warranty period of 12 months that commences upon the date of acceptance or the date of the event that sparks the acceptance following appropriate notification by the Principal. The Contractor shall rectify defects free of charge. If necessary, the Contractor shall make a corrected cleaning document available to the Principal free of charge. Expenses that extend above this shall be charged according to the costs incurred.
Warranty claims shall not apply of the defect is merely insignificant, in particular does not have a considerable effect on the known use, or if the defect is attributable to a cleaning agent or material, part or working equipment made available by the Principal or is attributable to incorrect technical details stated by the Principal within the meaning of Section 7. Likewise, warranty claims shall be excluded insofar as they are based on the faulty cleaning of invisible parts or residual quantities or incorrect details about the previous material. If the subsequent performance fails within a period set by the Principal for the subsequent improvement, the Principal may rescind the contract or reduce the price.
The Principal must provide the Contractor with notification of obvious defects which an average principal should be able to identify without further ado without delay following completion of the work in the case of taking possession of the order item before leaving the Contractor's company grounds to have the opportunity to assert warranty claims for defects. If notification regarding defects that are not obvious is not provided without delay, at the latest however ten workdays after the defect is identified, the corresponding warranty claims shall expire. The Principal is to provide detailed information about the defects to the best of its ability. The Contractor shall not be liable for a defect in a part or material that has been altered, reconditioned or repaired by parties other than the vicarious agents used in this respect by the Contractor during the warranty period.
§ 9 Liability
The Contractor is liable without restrictions for legal defects and guarantees. This does not affect liability in accordance with the German Product Liability Act.
The Contractor shall be liable for intentional or gross negligent violations of obligations or violating key contractual obligations. This also applies to the legal representatives, employees and vicarious agents of the Contractor. In the event of gross negligent culpability on the part of a vicarious agent, the Contractor's liability shall, however, be restricted to typical and foreseeable damage and in terms of amount to the maximum amount of the employer's liability insurance in the sum of € 10 million for each case of damage. In other respects, the liability of the Contractor, its representatives, employees and vicarious agents for basic negligent violation of insignificant contractual obligations is excluded. Likewise, the Contractor, its representatives, employees and vicarious agents shall not be liable for consequential damage caused by a defect insofar as such damage is not attributable to the violation of a key contractual obligation.
The liability of the Contractor, its representatives, employees and vicarious agents is restricted to typical and foreseeable contractual damage and in terms of amount to the maximum amount of the employer's liability insurance in the sum of € 10 million for each case of damage in the event of basic negligent culpability and violation of key contractual obligations. The Contractor, its representatives, employees and vicarious agents shall not be liable insofar as the sustained damage is attributable to incorrect details provided by the Principal or to the faulty nature of cleaning agents or materials, parts or working equipment made available by the Principal. Likewise, the Contractor, its representatives, employees and vicarious agents shall not be liable insofar as notification of defects in good time in accordance with Section 8 of these General Terms and Conditions of Business is not provided, and the liability is based on such defects.
§ 10 Compensation on the part of the Principal
The Principal is to compensate the Contractor for all damage sustained by the Contractor as a result of using cleaning agents or materials, parts or working equipment made available by the Principal. Furthermore, the Principal is to compensate the Contractor for all damage based on incorrect details provided by the Principal, in particular regarding technical data about the order item, in the case of cleaning service in particular regarding the product to be cleaned or the next loading. This includes in all cases indirect consequential damage. Insofar as the Contractor's liability to the Principal is excluded, the Principal undertakes to render the Contractor, its representatives, employees and vicarious agents exempt from all third-party claims that arise in conjunction with this contract and the services rendered in that respect.
§ 11 Data protection and secrecy
The Contractor shall store the required Principal's data (e.g. address and banking details) as part of the initiating and processing the contract. A connection of a network to the internet gives rise to the possibility of inappropriate use of data. The Principal must, therefore, inform the Contractor, in particular, of the sensitive nature of data so that the data can be protected separately against unauthorised access. Above paragraphs also apply to subcontractors or other third-parties commissioned by the Contractor to execute the order. Both contracting parties shall treat in confidence information that is marked confidential of which they gain knowledge as part of the contract.
§ 12 Withdrawal
If it becomes clear, irrespective of a prior appropriate review during the course of proper processing that the order cannot be executed, the Contractor may withdraw from the contract insofar as the reasons why the order cannot be executed are not the Contractor's responsibility. In the event of withdrawal from contract, the Principal shall only be entitled to the free return of the item in the respective condition. This does not affect the right to terminate for good cause.
§ 13 Announcements
Insofar as the contracting parties communicate by way of electronic post (e-mail), they acknowledge the unrestricted validity of the declarations of intent forwarded in such a manner subject to the following provisions.
The e-mail must contain the name and e-mail address of the sender, the time at which the e-mail is sent (date and time) and a repeat of the sender’s name as conclusion of the message. Confidentiality is not guaranteed for non-coded data forwarded via the internet. Each contracting party shall, at the request of the respective other, provide a harmonised coding system such as PGP on its site. An e-mail received as part of the above provisions shall be deemed to emanate from the other party subject to proof to the contrary. The binding nature of the e-mail and therefore the text form applies to all statements entailed in customary contract processing. By contrast, the text form is excluded in respect of termination and statements requested by a contracting party in writing that expressly vary from this agreement.
§ 14 Applicable law and place of performance
The contracting parties agree on application of German law regarding all legal relations resulting from this contractual relationship. German law shall also apply to cross-border transactions by way of exclusion of the UN Convention on Contracts for the International Sale of Goods. The place at which the Contractor renders services is deemed the place of performance for all mutual services resulting from the contract for merchants.
The court with jurisdiction for the Contractor's registered office in Hamburg, Germany, is deemed the sole place of jurisdiction for all claims. However, the Contractor is free to bring an action against the Principal at the court with jurisdiction for the Principal's registered office or at any other statutory place of jurisdiction.
§ 15 Safeguarding clause
In the event that a provision of these General Terms and Conditions of Business is or becomes void, this shall not affect the validity of the other provisions. The contracting parties shall replace the void provision by a valid provision that comes closest to the intentions of the contracting parties insofar as the invalidity of the provision is not based on a requirement geared towards the protection of a contracting party.
Only the original text is binding, subject to mistranslations.