As of: February 2015
Scope of application
The following Terms of Service shall apply to service works such as start of operation, maintenance and/or repairs if they are carried out by personnel of M&C TechGroup (hereinafter referred to as „M&C“) or by third parties assigned by M&C.
1. Ordering / Cancellation
Service for Start of Operation: It is a precondition for the performance of services regarding start of operation by M&C that a legally effective order is issued by the customer (hereinafter referred to as “Customer”) in writing and in due time, i.e. within Germany a minimum of three labour days and abroad a minimum of fourteen labour days before the actual travel date, as far as no special arrangements and preparation (like material procurement, vaccination, etc.) are necessary under the circumstances given. If the order is cancelled or postponed by the Customer, the costs incurred by M&C by that date (e.g. for flights, hotel bookings, etc.) shall be borne by the Customer. If the order is cancelled by the Customer, he shall in addition to the foregoing bear the planning and preparation costs at a rate of 20 per cent of the contract value. Customer shall have the right to prove that the cancellation has caused only losses to M&C lower than 20 per cent of the contract value.
Maintenance Services: The maintenance contract between Customer and M&C stipulates the regular maintenance of the equipment and/or components referred to. The maintenance intervals will be determined in agreement with the Customer and if necessary, adjusted from time to time. The detailed maintenance dates shall be agreed in due time according to the maintenance schedule. The minimum term of a contract is 12 months. The term of a contract will automatically be renewed for additional period of twelve months each unless it is cancelled prior to its minimum term or any further 12 months period with a notice period of 3 months. Extraordinary termination of a contract shall be possible only with our explicit consent in writing, save for immediate termination based upon important reasons that M&C is liable for. If the Customer terminates the contract without notice and without important reason that M&C is liable for, he shall nevertheless pay the agreed remumeration which is due until the the next available ordinary termination date minus costs that M&C saves as a consequence of further services not having to be provided.
2. Scope of Services
Services for start of operation: Final assembly and start of operation of the products delivered by M&C shall take place as individually agreed between M&C and Customer. Examples of such services are the installation of gas sampling probes (provided that the access to the place of the installation site is completely safe); installation of sampling lines on existing platforms; electrical wiring of M&C components (excluding installation of cables on site); start-up of analysing systems; calibration of electrical interfaces (analog); operational tests; calibration with tools/instruments available on Customer’s site. Additional services must be agreed in writing by both parties by way of an additional order with separate remumeration before being performed.
Maintenance: Services include inter alia regular inspections of the functionality; exchange of consumables and wearing parts; definition of a system-specific maintenance schedule; offers regarding spare parts and wearing parts packages.
Repair works: As a general rule, repairs of our products are carried out at an M&C production site. Repair works at Customer’s site can be carried out only if it is possible to execute them professionally with the tools and instruments available on-site.
3. Service personnel
The number and qualification of service personnel will be established by M&C according to the specific services ordered and in agreement with the Customer. M&C personnel will carry out exclusively services/works agreed upon in writing. Prior written agreement is necessary particularly if the M&C personnel shall additionally be involved in the training and/or instruction of Customer personnel.
If additional and/or work differing from the accepted order shall be carried out by M&C personnel at Customer’s site upon request by the Customer, this will be possible only with prior written consent of M&C. M&C personnel is neither authorized to issue legally binding statements nor to place or to accept orders in the name of M&C. The Customer is responsible to arrange for work and other permits necessary at the place where services/works are performed (other than services at M&C sites).
Materials supplied by M&C for services must be stored by the Customer in places that keep them protected against damage, in particular resulting from weather conditions and from the access of third parties. During the service operations, Customer shall provide a lockable room for the storage of materials and instruments. The required spare parts, installation and other materials supplied by M&C will be invoiced ex works at current prices.
5. Operation site ready for work
Start of Operations Services: For the final mounting of M&C parts, the Customer must make sure that the assembly sites are safe and easily accessible, that cable ducts and other constructions for assembly are available and that the cables for power supply and signalisation are laid and routed. Other supplies like water, compressed air, sampling gas, waste water (condensate) must be installed and ready to use at the place of application.
Maintenance and Repair Works: The safe accessibility of the places of maintenance and assembly must be ensured by the Customer.
Other Services: Work protection equipment and special work clothing must be provided by the Customer if required under the actual working conditions. This shall not apply where and to the extent the services or portions thereof shall be performed at M&C’s site or at the site of a third party designated by M&C. It is also the responsibility of the Customer to make sure that the M&C personnel can start executing their work immediately after arrival.
6. Safety regulations / Working conditions
6.1 It is the obligation of Customer to inform M&C of special working conditions and/or potential and/or actual limitations of working possibilities and, if necessary, to secure the corresponding special training of M&C personnel. The Customer is also responsible to ensure the safety of the site of work and operation and the work environment of the M&C personnel. The working hours of the M&C personnel are subject to German Employment Law. Working times exceeding ten hours are subject to approval by M&C as soon as the necessity for such extra hours becomes obvious. The Customer has to ensure that qualified contact persons are available during the service operations.
6.2 Time sheets
Time Sheets: M&C personnel will issue time sheets (revealing travel, work and, if applicable, waiting time). Such sheets shall be countersigned by the Customer. Materials used will also be included in such reports.
Duration of work: The duration of work indicated by M&C is estimated based upon experience without guarantee of accuracy. If the works are delayed due to waiting times or other circumstances within Customer’s sphere, the Customer shall bear the costs for such waiting and/or similar times and all other costs occurring additionally in this context, even if a fixed price has previously been agreed.
6.3 Acceptance Test
The Customer shall carry out an acceptance test regarding the services performed immediately after completion of the works and he shall confirm the correct performance and completion of such works. In case of maintenance works, the service report signed by the Customer shall be considered as acceptance.
7.1 After acceptance of the services rendered, M&C shall be liable for those defects/deficiencies of the services performed which destroy or diminish the value or suitability of the work results for normal use or use according to the contract, and which occur within a period of twelve months after acceptance. Such defects/deficiencies shall be remedied by M&C and all other warranty claims of Customer shall be excluded. The Customer has to notify M&C about defects or faults without delay. His right to claim that there is a fault or defect is subject to a limitation period of twelve months after notification. The period of warranty for defects will be extended for the duration of potential remediation of defects.
7.2 M&C shall not be liable for insignificant defects or defects due to circumstances attributable to the Customer (e.g. intervention of the Customer or activities of third parties not authorized by M&C).
7.3 Any modification or repair works carried out by the Customer or a third party on his behalf without prior approval of M&C will exclude the liability of M&C. Customer has the right to repair a defect or authorize third parties to repair it and to charge M&C with the occurring costs only in very urgent cases of endangerment of operational safety or to avoid unreasonably high damages. In such cases, or if M&C is behind the agreed schedule with the repair of defects M&C must be informed of such intention immediately. In any case the Customer is liable for his selection of third parties.
7.4 If M&C fails by its own fault to meet an adequate deadline set for the repair of defects, the Customer is entitled to claim a reduction of the invoice for M&C’S services. The Customer is entitled to rescind the contract after notification to M&C only if the works are verifiably without any technical and economical use for him even with the discount granted and provided the consequences can otherwise adequately be compensated. Any further claims shall be excluded.
7.5 Warranties granted by M&C do not include the quality and suitability of materials provided by Customer. They furthermore do not include those works of M&C personnel which were not included in the order confirmation of M&C.
7.6 Faulty work of personnel provided by the Customer is included in the M&C warranty only if Customer can show and prove that the faulty work is a result of wrongful instructions of M&C or of a breach of a duty of supervision by M&C.
8.1 Liability of M&C
M&C shall be responsible for selecting the adequate personnel and sending them to the operation site in due time. If an item delivered by M&C is damaged by fault of M&C, such item will be repaired or redelivered by M&C at its own choice and expense. The liability of M&C for the breach of secondary contractual obligations shall be limited to cases of gross negligence or of deliberate act. M&C in no case be liable in any case for indirect damages, economic loss or consequential harms caused by defects of its products or services. M&C shall not liable for works performed by its own personnel or any other accomplices if they are not included in the scope of works to be performed by M&C according to the reputive order confirmation. In no case shall M&C be liable for personnel provided by the Customer, unless such personnel has worked according to instructions received from M&C. All exclusions and limitations of M&C’s liability shall be void if and to the extent the law provides for compulsory liability (e.g. und applicable product liability law).
8.2 Liability of Customer
If equipment or devices provided by M&C are damaged or lost at the operation site without fault of M&C, the Customer must replace such items or, at M&C’s choice, bear the costs of replacement. Damages that are a result of normal wear shall not be taken into consideration.
9. Invoicing and payment
The service works carried out by M&C will be invoiced following completion of the works. M&C invoices are due and payable immediately upon receipt without deductions.
9.2 Invoices will be based on the rates valid at the date shown on the order confirmation. If modifications of labour costs, social insurance contributions or working times should occur during the time the works are carried out, M&C is entitled to charge the Customer with the updated rates.
9.3 Unless otherwise agreed, costs like those for on-site calibration and technical inspection by Technical Supervisory Associations shall be borned by the Customer.
9.4 VAT as established by law will be indicated separately on an invoice, unless applicable law allows or forces M&C not to charge VAT (i.e. shipment to a site outside Germany). In case of services performed abroad, the Customer will refund taxes and charges related to the service work performed.
9.5 Charge rates
For the assignment of M&C service personnel, M&C will charge the Customer with the rates valid at the date of conclusion of the contract, unless no flat-rate amounts and/or special billing rates have been agreed upon. The rates quoted or otherwise agreed are not of VAT. In case of charges for expenses according to receipts (e.g. accommodation costs) M&C will just charge net amounts (free of VAT).
10.1 The standard working time of M&C personnel is eight hours a day and/or 40 hours a week. For services within Germany the following overtime fees will be charged, according to the Industry-Wide Collective Agreement (German: “Manteltarifvertrag” - “MTV”)
1. 25% for the 9th and 10th working hour on the same day (Monday to Friday) and/or on any working hour on Saturdays until 12:00 PM.
2. 50% for hours exceeding the 10th working hour (Monday to Friday); for night work; on Saturdays after 12:00 PM and on Sundays.
3. 100% in case of official holidays on regular day-off/nonbusiness weekdays or on Sundays.
4. 150% in case of official holidays on working days of M&C as well as for Easter Sunday, Whitsunday and on Christmas holidays and also the 24th and 31st December after 12:00 PM.
10.2 The Customer will be informed separately about the current standard hourly rates. Such rates shall also apply to preparation, travel and waiting periods.
10.3 For services performed outside Germany, M&C will invoice additional charges for overtime etc. according to German legislation.
11.1 Extra payment for difficult working conditions: According to the MTV (Federal Collective Pay Scale) for assembly workers, M&C will – if applicable - charge the Customer a surcharge on top of the hourly rates for difficult working conditions such as noise, dirty environment, exposure to fumes, mud etc. The surcharge for those working hours will be shown separately in the time sheet of the M&C personnel.
The daily allowance will be calculated according to the current expense rates, which are recognised by the German tax office and/or – in cases of other travel expense accounting models – according to the tax-deductible invoices presented.
As regards accommodation, the Customer may suggest or book a good middle-class hotel or guest house according to German standards. Otherwise, the M&C personnel will take care of their own adequate accommodation. The costs of the accommodation shall be borne by the Customer. If the price for accommodation exceeds the daily allowance according to the current expense rates, the Customer shall reimburse the additional costs. The M&C personnel shall document and, if necessary, justify such additional costs.
11.4 Travel costs
Travel costs will be calculated and invoiced on the basis of actual travel time and distance, i.e. both the kilometers travelled to and from the accommodation and the place of operation, according to the ‘Federal Collective Pay Scale for Assembly Workers’ (in German: BMTV ‘Bundesmontagetarifvertrag’) in Germany. M&C will inform the Customer separately about the current hourly and kilometre rates within its offer or upon request. The distances will be determined by the location of the plant where the service personnel comes from. If the service personnel approaches the site of operation completely or partially by railway, taxi or air plane, the expenses will be invoiced according to the respective receipts. A daily allowance – if any - for travel between accommodation and operation site or parking fees will also be invoiced to the Customer. According to BMTV, the German service personnel is entitled to travel home to see the family after a period of four weeks stay at the operation site. Such costs shall also be charged to the Customer if the preconditions of such travel are fulfilled.
12. Terms and conditions of sale and delivery
Additional and subordinate to these Terms of Service shall also apply the provisions of the M&C Terms and Conditions of Sale and Delivery. Conditions of purchase or any other terms and conditions of the Customer, if any, shall be excluded even if referred to by the Customer in its order or otherwise.