(Status 01.08.2018)

1. Scope of application

(1) The following General Terms and Conditions apply to all contracts concluded between D-Sediment GmbH (hereinafter referred to as “DS”) and its customers (hereinafter referred to as “Customer”) in writing, orally or in any other form. The Customer’s general terms and conditions expressly do not become part of the contract, even if they are not expressly contradicted by DS. In the event that the Customer does not wish to accept the following general terms and conditions, he must notify DS of this in writing prior to the conclusion of the contract.

(2) Deviations from the terms and conditions listed here are only valid if DS has agreed to them in writing before acceptance of the order.

1. Written Form

All agreements must be in writing. Verbal agreements are only valid if they have been confirmed in writing. This also applies to ancillary agreements and assurances as well as subsequent amendments to the contract, including the agreement to waive the written form requirement.

1. Offer Binding

Cost estimates and quotations from DS are subject to change without notice and are not binding. A contract is only concluded by our written order confirmation.

1. Services

(1) The scope of the services to be provided by DS is determined by our written order confirmation and its attachments.

(2) The Customer agrees that DS may engage subcontractors for the performance of certain partial services.

(3) The provision of guarantees is not part of the scope of services. Should sureties nevertheless be desired, they will be offered by us against reimbursement of external and internal expenses.

1. Delivery time / reservation of self-delivery

(1) Binding delivery times require the express written agreement of both contracting parties.

(2) Compliance with the delivery time shall be subject to the Customer’s fulfillment of its obligation to cooperate. Should the Customer be in default with the fulfillment of its duty to cooperate, the delivery time shall be extended without further notice by the period of the Customer’s default.

(3) The delivery time shall also change in the event of unforeseen obstacles which we were unable to avert despite exercising reasonable care in the circumstances of the case. Possible causes for this can be, for example, operational disruptions, official interventions, as well as strikes and lockouts. DS must inform its customers of such hindrances without delay.

(4) In the event of a change or extension of the originally fixed scope of performance, the delivery time for the entire order shall be agreed anew.

(5) DS does not assume any procurement risk. DS is entitled to withdraw from the contract insofar as it is dependent on a supply by third parties for the proper fulfillment of the contract and DS does not receive the delivery item/service for its part despite the prior conclusion of a corresponding contract; the responsibility for intent and negligence remains unaffected. DS shall immediately inform the Customer of the non-timely availability of the delivery item and, if DS wishes to withdraw from the contract, shall immediately exercise the right of withdrawal and, in the event of withdrawal, shall immediately reimburse the Customer for the corresponding consideration.

1. Price Adjustments

(1) Should the necessity arise during the processing to extend the task by mutual agreement, we shall be entitled to additionally invoice the additional expenditure in accordance with the current hourly rate or at a fixed price to be agreed for this purpose.

(2) All deliveries and services performed after the calendar year of the date of the offer shall be subject to a price increase in accordance with the general adjustment of the consumer price index published by the Federal Statistical Office.

1. Customer’s duty to cooperate

(1) The Customer shall immediately provide DS with all information available to him in connection with the placed order. In particular, the Customer warrants that all acts of cooperation on his part or on the part of his vicarious agents will be performed in a timely manner and free of charge for DS.

(2) If technical documentation is ordered, the Customer shall be responsible for providing DS with all information on the part of the Customer that is required for a description that complies with the statutory regulations.

1. Acceptance

(1) Acceptance of the services delivered by us shall take place if the customer does not object in writing within 10 days after handover of a written statement of services or invoice and the customer presents substantial deviations from the contractual quality within this period.

(2) The existence of any defects shall not entitle the Customer to refuse acceptance if the defects can be remedied by rectification. In this case, the customer shall list the defects in an acceptance report with a reference to rectification.

1. Transfer of risk

The risk (material and price risk) shall in any case pass to the customer as soon as the service has been handed over to the shipping agent. If the order is ready for shipment and the shipment or acceptance is delayed for reasons for which DS is not responsible, the risk shall pass to the Customer upon receipt of the notice of readiness for shipment.

1. Warranty

(1) Obvious deviations from the contractually agreed quality of the services delivered by us, which are recognizable upon proper inspection and testing, must be reported by the Customer in writing within 10 days of receipt. The customer shall give written notice of any deviations which are not obvious and which are not recognizable upon proper inspection within 7 days after they become obvious. In the event of failure to comply with these deadlines for giving notice of defects, a warranty for the defects affected by this shall no longer be considered.

(2) In the event of a justified notice of defect, the Customer shall set DS a reasonable deadline for subsequent performance in writing. DS shall in any case have the right to choose between rectification of the defect and new performance. DS shall be entitled to two attempts at subsequent performance within a reasonable period of time to effect subsequent performance for the same or a directly related defect. After the second failed attempt of supplementary performance, the Customer may withdraw from the contract or demand a reduction. If the Customer wishes to claim damages in lieu of performance or to carry out self-performance, in this respect a failure of the subsequent performance shall only be deemed to have occurred after the second unsuccessful attempt. The legal cases of dispensability of setting a deadline remain unaffected. Withdrawal due to an only insignificant defect is excluded.

1. Liability

(1) DS is only liable for intent and gross negligence. In such cases, liability shall be in accordance with the statutory provisions. Even in cases of gross negligence, damages for the breach of essential contractual obligations shall be limited to the foreseeable damage typical for the contract. Liability for damage caused by the subject matter of the contract to legal assets of the contractual partner, e.g. damage to other property, is excluded, unless there is intent or gross negligence or the liability is due to injury to life, body or health.

(2) If, taking into account the limitation of liability in the preceding paragraph, a liability of any kind arises for DS, such liability shall be limited to 10% of the relevant invoice value, unless it is a case of injury to life, body or health. Claims due to delay are limited to 0.5 % of the order value per week of delay in delivery, but to a maximum of 10 % of the invoice value in question.

(3) DS is not obliged to verify specifications received from the Customer (such as dimensional data, calculations or company-specific data) unless verification of the specifications has been explicitly agreed in writing. DS shall in no case be liable for errors in the specifications supplied by the Customer.

(4) If DS acts merely as an intermediary in the selection of service providers (e.g. designers, translators, etc.) and the Customer places orders with them in his name and for his account, DS shall not assume any liability or warranty for this.

(5) The Customer shall be responsible for ensuring that the use of the specifications provided by him or his employees to DS does not violate the property rights of third parties. In this respect, the Customer shall indemnify DS against claims of third parties and shall pay compensation for the damage incurred in the event of damage.

1. Secrecy

DS, the Customer and its vicarious agents undertake to treat all documents and information exchanged in the course of a project confidentially and with due care towards third parties. This also applies to subcontractors.

1. Retention of Title / Right of Use

(1) Until full payment of all claims arising from the business relationship with the Customer, the deliveries and services provided remain the property of DS.

(2) The contracting party is not authorized to dispose of the services or items subject to retention of title. In particular, he may not sell, lend, give away, pledge or assign them as security to third parties.

(3) The assertion of the reservation of title does not mean the withdrawal from the contract.

1. Terms of payment

(1) Payment for the Services shall be set forth in the individual contract between DS and the Customer.

(2) Orders shall be invoiced according to the progress of deliveries and services. In the case of partial delivery/partial performance, the invoice amount attributable to this part shall be due, irrespective of the scope of the outstanding parts.

(3) For deliveries outside Germany, the following shall apply as advance payment dates:

30 % upon placement of the order

30 % upon factory acceptance, if this is not provided for upon delivery

40 % after acceptance, for deliveries only after delivery

(4) Invoices shall be credited without deduction to the account specified in the invoice within 10 calendar days of receipt. We must be notified in writing of any objections to our invoices within the preclusive period of 10 calendar days after the invoice date, stating the reasons. In the event that the relevant payment deadline is exceeded, DS shall be entitled to demand interest on arrears in the amount of 9% above the respective base interest rate of the European Central Bank without the need for a reminder.

(5) The Customer is only entitled to offset or withhold payment if he has undisputed or legally established counterclaims.

(6) In the event of default in payment and in the event of reasonable doubt as to the Customer’s ability or willingness to pay, including the dishonor of checks, DS shall be entitled, irrespective of other legal claims, to demand securities or advance payments for all remaining claims arising from the contractual relationship. DS is further entitled to demand immediate payment of all other claims arising from the business relationship.

1. Cancellation

(1) The termination of an ongoing project can only be brought about by either party for good cause. If a project is terminated for a reason for which DS is responsible, DS shall only be entitled to remuneration for the services rendered up to the time of termination. In all other cases, we reserve the right to claim the contractually agreed fee, but with deduction of saved expenses.

(2) Should the Customer be in default with his obligation to cooperate, DS is entitled to set a reasonable deadline for him to make up for this obligation. If the cooperation does not take place within this period, DS is entitled to terminate the contract with the Customer.

1. References

The Customer agrees that DS may include the name or the company of the Customer in its reference list.

1. Law and Place of Jurisdiction

(1) Should individual provisions of these General Terms and Conditions be or become invalid in whole or in part, this shall not affect the validity of the remaining provisions. Rather, the invalid provision(s) shall be replaced by the provision that comes closest to the intended purpose in economic terms. The same shall apply to any loophole that occurs.

(2) The Customer may only assign his rights arising from the business relationship with the prior written consent of DS.

(3) Place of performance except for agreed material deliveries to customers at the risk of DS and for payment as well as place of jurisdiction is 59368 Werne. German law shall apply exclusively.