Terms and Conditions
of TRIPLAN AG for engineering services in the planning sector
(Status: January 2008)
The following terms and conditions shall apply for all present and future offers, orders and plans of TRIPLAN AG (contractor) against companies, public legal entities or public special assets exclusively. The client may assign its claims against the contractor to third parties only after an express and prior agreement. §354a German Commercial Code is unaffected. The offers are without obligation and unbinding. Orders are only considered accepted by written order confirmation from the contractor.
Prices are considered as fixed prices or unit prices plus the current VAT.
3. Scope of benefits
The contractor offers exclusively planning services unless the offer contains an express diverging regulation. The client is responsible for process engineering standards as a company specialising in operating the equipment to be planned.
4. Duty to cooperate and participatory rights
The particular duty of the client to cooperate is particularly the timely provision of necessary documents, obtaining approvals, granting releases and maintaining agreed payment conditions. It is also responsible for the joint action of the companies participating in the project. The client shall ensure that the subcontractors executing the plans check that theoretical specifications and real facts of the building site are in harmony before implementing the plans prepared by the contractor. This checking can only be expressly delegated in writing to the contractor from the client in the context of a total authorisation.
5. Delivery period
Maintenance of the delivery deadline by the contractor presupposes that the client has fulfilled its duty to cooperate pursuant to clause 4. The delivery deadline shall begin after clarification of all details of the execution of the order and receipt of all documents required to execute the order and other information to be provided by the client as well as, if agreed, receipt of a corresponding payment. Individual deadlines contained in the construction schedule are only considered contractual deadlines if this is expressly agreed in the contract. The delivery deadline is appropriately extended if
delays occur because of unforeseen circumstances that lie outside the contractor’s range of volition and have considerable influence on the fulfilment of contractual performance. This also applies if this circumstance arises with suppliers. The client shall be immediately informed of these circumstances.
6. Completion, Part-performance
The contractor is – unless otherwise agreed – entitled, to provide and pay for part performances as soon as the client has confirmed release by written certification. If release of the partperformances does not occur within a period of four weeks after the order completion report of the relevant part-performance, their release is considered complete. If the client has started using the service or part of the service the acceptance shall be considered as complete six working days have elapsed after the use began. The contractor undertakes to separately refer the client at the beginning of the period to the envisaged meaning of its behaviour. The contractor can refuse any further execution of the order if after completion of the contract it has become clear that its claim to payment is jeopardised by doubt as to the creditworthiness of the client, particularly by an application for the opening or the opening of insolvency proceedings, individual enforcement or bill or cheque protest. The right to refuse a service shall not apply if payment is made or security is provided for it. The duty to submit documents and plans to the client is fulfilled once the contractor sends them to the client or has shown the client its readiness to collect.
7. Duty to inspect, Complaints, Acceptance
The client is obliged to check the accuracy and completeness according to the order of the documents and plans submitted by the contractor immediately after delivery. Should a defect be discovered during the inspection, it must be immediately notified in writing to the contractor, at the latest within two weeks. If a defect is only discovered later, the client shall notify the contractor of the defect at the latest within two weeks. The client shall state its acceptance at the latest four weeks after delivery. If after four weeks no acceptance has been stated by the client it shall be considered as implied. The contractor undertakes to separately refer the client to the envisaged meaning of its behaviour at the beginning of the period. Should there be an essential change to the scope of the order the contractor reserves the right to change the price. In such cases the delivery period shall be set again in accordance with clause 5.
The client’s right to a guarantee presupposes that complaints are made immediately and in writing pursuant to clause 7. In the case of a justified complaint the contractor is entitled to repair the defect. Should the remedy fail or be unacceptable to the client, is refused or delayed by the contractor beyond an appropriate period for reasons that lie with the contractor, the client can – notwithstanding any claims for compensation – reduce the remuneration or if construction work is not part of the contract, withdraw from the contract. All the client’s guarantee claims against the contractor that are not aimed at compensation shall become statute-barred within 12 months from the day of delivery or if acceptance is required, from the day of acceptance. This shall not apply with a deliberate breach of duty, a breach of guarantee or in the event of §§438 Par. 1 No. 2, 634a Par. 1 No. 2 Civil Code. For claims arising from a defect aimed at compensation the regulations in clause 9 shall apply. Should the client claim under a guarantee the contractor has the right against the client to receive photocopies of the relevant planning documents prepared by the contractor and the client’s corresponding planning standards at the standard price.
9. Limitation of liability
Claims of compensation against the contractor or persons that it has helped to fulfil their obligations (§§ 276, 278 Civil Code) are excluded in slightly negligent violations of duties that are not essential to the contract. Liability for slightly negligent violations of duties that are essential to the contract is restricted to compensation for typically foreseeable damage of 5 m EUR. The contractor has taken out planning liability insurance of 5 m EUR. The contractor refers the client to the possibility of taking out separate project liability insurance for the offered project if desired, whose costs are added to the offered price. Compensation claims against the contractor or its employees shall be statute-barred after a year in the event of slightly negligent violations of duties after a year. This shall not apply for compensation claims for a defect in cases of §§438 Par. 1 No. 2, 634a Par. 1 No. 2 Civil Code. The above exclusions and restrictions on liability shall not apply in the event of harm to life, body or health.
10. Confidentiality obligation
The parties pledge themselves to secrecy and shall not provide third parties with information about documents on business secrets unless this is necessary for the fulfilment of mutual obligations under the contractual relationship. Employees shall be enjoined in writing to maintain secrecy. The obligation to main secrecy shall continue beyond the contractual relationship.
11. Retention of ownership, restriction of use
The contractor reserves the right to retention of ownership and copyright of illustrations, diagrams, calculations and other documents until complete payment of all claims of the contractor against the client. The reservation of rights shall also exist if individual claims are admitted in an account current, the balance is struck and accepted, thus securing the balance. Should the client delay and the contractor withdraw from the contract for this reason, the client can no longer use the contractor’s plans..
12. Offsetting prohibition, concluding provisions
The client can only set off against the contractor’s claims if the client’s counter claim is accepted, undisputed or finally and conclusively established. If the client is a trader, public legal entity or public special assets, the place of jurisdiction shall be considered the contractor’s head office (place of jurisdiction agreement) for any dispute arising from the contract or the conditions of its coming into existence. All disputes arising from the contract or the conditions of its coming into existence shall be subject to German law.