44. When erection is carried out on a time basis the following items shall be separately charged: 45. When erection is to be carried out for a lump sum, the quoted price shall be deemed to include all the items mentioned in Clause 44, a) through e). If the erection is delayed due to a cause for which the responsibility rests with the Purchaser or any of his contractors other than the Contractor, the Purchaser shall compensate the Contractor for: 47. If the Purchaser fails to pay by a stipulated date, the Contractor shall be entitled to interest from the day on which payment was due. The rate of interest shall be as agreed between the parties. If the parties have not agreed on the rate of interest, it shall be 8 percentage points above the rate of the main refinancing facility of the European Central Bank in force on the due date of payment. RETENTION OF TITLE 48. The Plant shall remain the property of the Contractor until paid for in full, including payment for the erection of the Plant, to the extent that such retention of title is valid under the applicable law. LIABILITY FOR DAMAGE TO PROPERTY BEFORE TAKING-OVER 49. The Contractor shall be liable for any damage to the Works which occurs before the risk has passed to the Purchaser. This applies irrespective of the cause of the damage, unless the damage has been caused by the Purchaser or anyone for whom he is responsible in connection with performance of the Contract. Even if the Contractor is not liable for the damage to the Works in accordance with this Clause, the Purchaser may require the Contractor to remedy the damage at the Purchaser\u2018s cost. 50. The Contractor shall be liable for damage to the Purchaser\u2018s property occurring before taking-over of the Works only if it is proved that such damage was caused by negligence on the part of the Contractor or anyone for whom he is responsible in connection with the performance of the Contract. The Contractor shall however under no circumstances be liable for loss of production, loss of profit or any other consequential economic loss. <\/span><\/p>\n LIABILITY FOR DEFECTS 51. Pursuant to the provisions of Clauses 52-65 inclusive, the Contractor shall remedy any detect or nonconformity (hereinafter termed defect(s)) in the Works resulting from faulty design. materials or workmanship. 52. The Contractor\u2018s ability is limited to defects in the Works which appear within a period of one year from taking-over. If the daily use of the Works exceeds that which is agreed, this period shall be reduced proportionately. If taking-over has been delayed for reasons for which the Purchaser is responsible, the Contractor\u2018s liability for defects shall not. except as stated in Clause 53, be extended beyond 18 months after delivery of the Plant. 53. When a defect in a part of the Works has been remedied, the Contractor shall be liable for defects in the repaired or replaced part under the same terms and conditions as those applicable to the original Works for a period of one year. For the remaining parts of the Works the period mentioned in Clause 52 shall be extended only by a period equal to the period during which the Works have been out of operation as a result of the defect. 54. The Purchaser shall without undue delay notify the Contractor In Writing of any defect which appears. Such notice shall under no circumstance be given later than two weeks after the expiry of the period given in Clause The notice shall contain a description of the defect. 55. On receipt of the notice under Clause 54, the Contractor shall remedy the defect without undue delay and at his own cost as stipulated in Clauses 51-65 inclusive. Repair shall be carried out at the Site, unless the Contractor deems ii appropriate that the defective part or the Plant is returned to him for repair or replacement. 56. If the Purchaser has given such notice as mentioned in Clause 54, and no defect is found for which the Contractor is liable, the Contractor shall be entitled to compensation for the costs he has incurred as a result of the notice. 57. The Purchaser shall at his own expense arrange for any dismantling and reassembly of equipment other than the Works, to the extent that this is necessary to remedy the defect. 58. Unless otherwise agreed, necessary transport of the Plant and\/or parts thereof to and from the Contractor in connection with the remedying of defects for which the Contractor is liable shall be at the risk and expense of the Contractor. The Purchaser shall follow the Contractors instructions regarding such transport. 59. Defective parts which have been replaced shall be made available to the Contractor and shall be his property. 60. If, within a reasonable time, the Contractor does not fulfil his obligations under Clause 65, the Purchaser may, by notice In Writing, fix a final time for completion of the Contractor\u2018s obligations. If the Contractor fails to fulfil his obligations within such final time, the Purchaser may himself undertake or employ a third party to undertake necessary remedial works at the risk and expense of the Contractor. 61. Where the defect has not been successfully remedied as stipulated under Clause 60: 62. The Contractor is not liable for defects arising out of materials provided, or a design stipulated or specified by the Purchaser. 63. The Contractor is liable only for defects which appear under the conditions of operation provided for in the Contract and under proper use of the Works. 64. Notwithstanding the provisions of Clauses 51-65 the Contractor shall not be liable for defects in any part of the Works for more than one year from taking-over If taking-over has been delayed for reasons for which the Purchaser is responsible, the Contractor\u2018s liability for defects shall not be extended beyond 18 months after delivery of the Plant. 65. Save as stipulated in Clauses 51-64, the Contractor shall not be liable for defects. This applies to any loss the defect may cause including loss of production, loss of profit and other indirect loss. FORCE MAJEURE 66. Either party shall be entitled to suspend performance of his obligations under the Contract to the extent that such performance is impeded or made unreasonably onerous by any of the following circumstances: industrial disputes and any other circumstance beyond the control of the parties such as lire, war, extensive military mobilization, insurrection, requisition, seizure, embargo, restrictions in the use of power and detects or delays in deliveries by subcontractors caused by any such circumstance as referred to in this Clause. 67. The party claiming to be affected by Force Majeure shall notify the other party In Writing without delay on the intervention and on the cessation of such circumstance. 68. Regardless of what might otherwise follow from these General Conditions, either party shall be entitled to terminate the Contract by notice In Writing to the other party If performance of the Contract is suspended under Clause 66 for more than six months. <\/span><\/p>\n ANTICIPATED NON-PERFORMANCE 69. Notwithstanding other provisions in these General Conditions regarding suspension, each party shall be entitled to suspend the performance of his obligations under the Contract, where it 5 clear from the circumstances that the other party will not be able to perform his obligations. A party suspending his performance of the Contract shall forthwith notify the other party thereof In Writing. <\/span><\/p>\n CONSEQUENTIAL LOSSES 70. Save as otherwise stated in these General Conditions there shall be no liability for either party towards the other party for loss of production, loss of profit, lass of use, loss of contracts or for any other consequential or indirect loss whatsoever. DISPUTES AND APPLICABLE LAW 71. All disputes arising out of or in connection with the Contract shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the said rules. 72. The Contract shall be governed by the substantive law of the Contractor\u2019s country. <\/span><\/p>\n \u00a0<\/span><\/p>\n Kistner Anlagenbau GmbH, 1. Mai 2008 [vc_row type=”in_container” full_screen_row_position=”middle” column_margin=”default” column_direction=”default” column_direction_tablet=”default” column_direction_phone=”default” scene_position=”center” text_color=”dark” text_align=”left” row_border_radius=”none” row_border_radius_applies=”bg” overlay_strength=”0.3″ gradient_direction=”left_to_right” shape_divider_position=”bottom” bg_image_animation=”none”][vc_column column_padding=”padding-7-percent” column_padding_tablet=”inherit” column_padding_phone=”inherit” column_padding_position=”all” background_color_opacity=”1″ background_hover_color_opacity=”1″ column_shadow=”none” column_border_radius=”none” column_link_target=”_self” gradient_direction=”left_to_right” overlay_strength=”0.3″ width=”1\/1″ tablet_width_inherit=”default” tablet_text_alignment=”default”…<\/p>\n","protected":false},"author":1,"featured_media":0,"parent":0,"menu_order":0,"comment_status":"closed","ping_status":"closed","template":"","meta":[],"_links":{"self":[{"href":"https:\/\/kistner-germany.de\/en\/wp-json\/wp\/v2\/pages\/808"}],"collection":[{"href":"https:\/\/kistner-germany.de\/en\/wp-json\/wp\/v2\/pages"}],"about":[{"href":"https:\/\/kistner-germany.de\/en\/wp-json\/wp\/v2\/types\/page"}],"author":[{"embeddable":true,"href":"https:\/\/kistner-germany.de\/en\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/kistner-germany.de\/en\/wp-json\/wp\/v2\/comments?post=808"}],"version-history":[{"count":3,"href":"https:\/\/kistner-germany.de\/en\/wp-json\/wp\/v2\/pages\/808\/revisions"}],"predecessor-version":[{"id":811,"href":"https:\/\/kistner-germany.de\/en\/wp-json\/wp\/v2\/pages\/808\/revisions\/811"}],"wp:attachment":[{"href":"https:\/\/kistner-germany.de\/en\/wp-json\/wp\/v2\/media?parent=808"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}
\na) all travelling expenses incurred by the Contractor in respect of his personnel and the transport of their equipment and personal effects (within reasonable limits) in accordance with the specified method and class of travel where these are specified in the Contract;
\nb) cost of board and lodging and other living expenses, including any appropriate allowances, of the Contractor\u2018s personnel for each day\u2018s absence from their homes, including non-working days and holidays;
\nc) the time worked, which shall be calculated by reference to the number of hours certified as worked in the timesheets signed by the Purchaser. The absence of a signature does not exclude charging the works according to the information of the Contractor\u2018s assembly and service personnel. Overtime and work on Sundays, holidays and at night will be charged at special rates. The rates shall be as agreed in the Contract, or, failing agreement, as normally charged by the Contractor. Save as otherwise provided, the hourly rates cover the wear and tear of the Contractors tools and light equipment.;
\nd) time necessarily spent on:
\n– preparation and formalities incidental to the outward and homeward to journeys,
\n– the outward and homeward journeys and other journeys to which the personnel are entitled in accordance with current law, regulations or collective agreements in the Contractor\u2018s country,
\n– daily travel between lodgings and the Site, if it exceeds half an hour and there are no suitable lodgings closer to the Site,
\n– waiting when work is prevented by circumstances for which the Contractor is not responsible under the
\nContract,
\nall at the same rates as referred to in c);
\ne) any expenses incurred by the Contractor in accordance with the Contract, in connection with the provision of equipment by him, including where appropriate a charge for the use of the Contractor\u2018s own heavy equipment;
\nf) any taxes or dues levied on the invoice and payable by the Contractor in the country where erection takes place.
\n<\/span><\/p>\n
\na) waiting time and time spent on extra journeys
\nb) costs and extra work resulting from the delay, including removing, securing and setting up erection equipment;
\nc) additional costs, including costs as a result of the Contractor having to keep his equipment at the Site for a longer time than expected;
\nd) additional costs for journeys and board and lodging for the Contractor\u2018s personnel;
\ne) additional financing costs and costs of insurance;
\nf) other documented costs incurred by the Contractor as a result of changes in the erection program.
\n46. Whatever the means of payment used, payment shall not be deemed to have been effected before the Contractor\u2018s account has been fully and irrevocably credited.
\n<\/span><\/p>\n
\nIn case of late payment the Contractor may, after having notified the Purchaser In Writing, suspend his performance of the Contract until he receives payment.
\nIf the Purchaser has not paid the amount due within three months, the Contractor shall be entitled to terminate the Contract by notice In Writing to the Purchaser and to claim compensation for the loss he has incurred. The compensation shall not exceed the Contract Price.<\/span><\/p>\n
\n<\/span><\/p>\n
\nThe Purchaser shall at the request of the Contractor assist him in taking any measures necessary to protect the Contractor\u2018s title to the Plant in the country concerned.
\nThe retention of title shall not affect the passing of risk under Clause 26. <\/span><\/p>\n
\n<\/span><\/p>\n
\n<\/span><\/p>\n
\n<\/span><\/p>\n
\n<\/span><\/p>\n
\n<\/span><\/p>\n
\n<\/span><\/p>\n
\nIf the Purchaser fails to notify the Contractor In Writing of a defect within the time-limits set forth in this Clause, he loses his right to have the defect remedied.
\nWhere the defect is such that it may cause damage, the Purchaser shall immediately inform the Contractor In Writing. The Purchaser shall bear the risk of damage resulting from his failure so to notify.
\n<\/span><\/p>\n
\nWhere remedial work is carried out at the Site, Clauses 14 and 50 shall apply correspondingly.
\nThe Contractor is obliged to dismantle the Works to the extent necessary and to re-assemble the Works if this requires special knowledge. If such special knowledge is not required, the Contractor has fulfilled his obligations in respect of the detect when he delivers to the Purchaser a duly repaired or replaced part.
\n<\/span><\/p>\n
\n<\/span><\/p>\n
\n<\/span><\/p>\n
\nIf the Works are not at the Site, the Purchaser shall bear any resulting additional costs incurred by the Contractor when remedying defects.
\n<\/span><\/p>\n
\n<\/span><\/p>\n
\nWhere successful remedial works have been undertaken by the Purchaser or a third party, reimbursement by the Contractor of reasonable costs incurred by the Purchaser shall be in full settlement of the Contractor\u2018s liabilities for the said defect.
\n<\/span><\/p>\n
\na) the Purchaser is entitled to a reduction of the Contract Price in proportion to the reduced value of the Works, provided that under no circumstance shall such reduction exceed 10 per cent of the Contract Price, or
\nb) where the defect 13 so substantial as to significantly deprive the Purchaser of the benefit of the Contract, the Purchaser may terminate the Contract by notice In Writing to the Contractor. The Purchaser is then entitled to compensation for the loss he has suffered up to a maximum of IG per cent of the Contract Price.
\n<\/span><\/p>\n
\n<\/span><\/p>\n
\nThe Contractor\u2018s liability does not cover defects which are caused by faulty maintenance or faulty repair by the Purchaser, or by alterations carried out without Contractor\u2018s consent In Writing. Finally the Contractors liability does not cover normal wear and tear or deterioration.
\n<\/span><\/p>\n
\n<\/span><\/p>\n
\nThis limitation of the Contractors liability shall not apply if he has been guilty of intent or Gross Negligence as defined in Clause 2 or if he negligently causes damage to life, body or health.
\nFurthermore, the limitation of liability shall not apply in cases of negligent breach of a condition which goes to the root of the contract (\u2018wesentliche Vertragspflichten\u201c). In the case of slight negligence the Contractor shall be liable only for reasonably foreseeable damage which 19 intrinsic to the contract.
\nNor shall the said limitation of liability apply in the cases of strict liability under the Product Liability Act (\u201cProdukthaftungsgesetz\u201c), for detects of the Works causing death or personal injury, or damage to items of property used privately. Furthermore, the said limitation of liability shall not apply in the case of defects the Contractor has fraudulently concealed or whose absence he has guaranteed.
\nThis limitation of the Contractor\u2018s liability shall not apply if he has been guilty of Gross Negligence.<\/span><\/p>\n
\n<\/span><\/p>\n
\nA circumstance referred to in this clause, whether occurring prior to or after the formation of the Contract, shall give a right to suspension only if its effect on the performance of the Contract could not be foreseen at the time of the formation of the Contract.
\n<\/span><\/p>\n
\nIf Force Majeure prevents the Purchaser from fulfilling his obligations, he shall compensate the Contractor for expenses incurred in securing and protecting the Works.
\n<\/span><\/p>\n
\n<\/span><\/p>\n
\n<\/span><\/p>\n
\nThe said exclusion of liability shall not apply in the case of intent or Gross Negligence as defined in Clause 2 or if the Contractor negligently causes damage to life, body or health, Furthermore, the exclusion of liability shall not apply in cases of negligent breach of a condition which goes to the root of the contract (\u201cwesentliche Vertragspflichten\u20183. In the case of a slightly negligent breach of a condition which goes to the root of the contract, Contractor shell be liable only for reasonably foreseeable damage which 5 intrinsic to the contract.
\nNor shall the exclusion of liability apply in the cases of strict liability under the Product Liability Act (\u201cProdukthaftungsgesetz\u201c), for defects of the Works causing death or personal injury, or damage to items of property used privately. Neither does the said exclusion apply in the case of damage attributable to fraudulent concealment or despite specific guarantees. <\/span><\/p>\n
\n<\/span><\/p>\n
\n<\/span><\/p>\n
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