COMMERCIAL TERMS

General Terms and Conditions of AFRICAN WATER for contract work and Services

I. Scope of validity

 The following General Terms and Conditions of Contract work / Services of AFRICAN WATER (hereinafter referred to as the "Contractor") shall be deemed an integral part of the contract for work / services and other contracts with elements of contract work / services (hereinafter referred to as the "Contract").

Our Terms and Conditions apply without limitations. Conflicting or derogating general terms and conditions or other constraints imposed by the orderer shall not be recognized unless the Contractor has expressly consented thereto in writing in the actual individual case.

II. Execution of service orders

  1. In execution of the order the Contractor shall apply generally accepted engineering standards and its own know-how and experience. The contractor executes the ordered services carefully with qualified personneI.
  1. As far as nothing else has been agreed, the contractor may subcontract the performance of services to competent third parties.
  1. The contractor reserves the right to recall employees executing the order at any time and replace them by equally qualified employees at own expense.
  1. Regular working hours shall be determined in accordance with the legal and collective bargaining agreement regulations which are applicable to the employees performing the services ordered.
  1. In case deviations from regular working hours applicable to the personnel performing the services become necessary, then the orderer shall inform the contractor about such requirements. The contractor together with the orderer shall enter into an agreement concerning the terms and conditions regarding work outside the regular working hours.
  1. The contractor will inform the orderer bi-weekly about the time spent by the personnel in order to perform the ordered services.
  1. The orderer is obligated to comply with all safety regulations for the avoidance of accidents and to take all necessary measures for the avoidance of accidents. The orderer has to inform the personnel deployed for execution of the services ordered about any safety regulations and measures in operations at the place of work. In case safety measures at the place of work are inadequate, the personnel which are deployed for execution of the ordered services may refuse to start work until the lack of safety measures shall be remedied.
  1. In case the execution of the ordered services is delayed for reasons not attributable to the contractor, the orderer shall bear any costs for waiting times or additional traveling ofthe contractor's personnel caused by the delay.
  1. In case the orderer asks the contractor to perform services which do not form part of the offer, then such services shall be invoiced in accordance with the price for time and materials.
  1. The orderer has to bear the unexpected additional costs which arise due to discrepancies from the classification of ground. In such a case the contractor will inform the orderer in writing about the additional costs before starting the respective work which causes the additional costs.
  1. The orderer has to decide immediately whether he agrees to the continuation of the work by the contractor and to the additional costs for this work.
  1. If the orderer does not reply to the written information of the contractor about the additional work, then the contractor will continue the work as far as it is reasonable.

III. Cooperation obligations

  1. The orderer shall ensure that the Contractor receives unsolicited and in good time all the documents and information necessary for execution of the order. In execution of the order the Contractor shall be entitled to assume that the facts as stated by the orderer, particularly the figures and documents provided, are accurate and complete; this shall not apply if it is expressly agreed in writing that the inforrriation and documents given need to be checked by the Contractor.
  1. Before the execution of the order the orderer shall at its own expense complete all measures and preparations necessary for the execution of the order to be incumbent on the orderer.
  1. In particular the orderer shall provide at its expense and in timely manner the following unless otherwise expressly agreed:
  1. Electricity and water supply according to requirements including connections, heating and lighting.
  1. At the installation site: sufficiently large, suitable, dry and lockable rooms for the storage of machine parts, tools and materials and for the Contractor's personnel appropriate working and resting rooms, including adequate sanitary facilities; Additionally the orderer has to take all measures which are necessary for the protection of the Contractor's personnel as weIl as the Contractors property at the construction site .
  1. Protective clothing and protection equipment required due to specific conditions prevailing at the installation site.
  1. Before the start of the service the orderer shall unsolicited provide the Contractor with any necessary information about hidden electricity and gas lines, water mains and other hidden supply lines as weil as information regarding structural stability.
  1. All of the objects which are to be made available by the orderer shall be at the installation site prior to the start of the execution of the order. Prior to the start of work by the Contractor all preparatory work to be performed by the orderer must be progressed to a stage that the ordered services may be commenced as agreed and can be executed continuously. Access ways, place for setting up as weil as installation site must be accessible without any obstruction.
  1. Obtaining all official permits and consents as weil as other consents of third persons which may potentially be required at the location to perform the services shall be at the cost and risk of the orderer.
  1. The orderer shall unsolicited inform the Contractor about any and all legal, official or other rules and regulations or any other circumstances which must be taken into account when executing the order or which may lead to additional burdens when executing the order.
  1. In case the execution of the order should be delayed or complicated due to the orderer's non-compliance with its co-operation obligations, the orderer shall be liable for any additional costs or expenses caused by such non-compliance.

IV. Deadlines

Periods allowed for execution of the Contract shall not be binding unless expressly binding deadlines are fixed in the written acknowledgement of the order. If binding deadlines are fixed, in case of delay the Orderer must extend the original deadline by a reasonable amount of time, as a rule by two weeks.

V. Liability

  1. No claims for compensation may be lodged by the Orderer - including those of a non-contractual nature - for any minor negligent breach of duty the Contractor, his executive staff or other agents. The aforementioned limitations shall not apply to damage relating to death, injury or damage to health. None of the above shall affect any mandatory liability rights.
  1. The Contractor is not liable for the soil conditions.
  2. The orderer has to obtain information about the soil conditions.
  3. The orderer releases the Contractor from any claim of third persons.
  4. Particularly the Contractor does not take the risk of liability for [ ... ]
  5. In particular the Contractor does not warrant that there will be definitely found any liquid resources by the drilling unless there are liquid resources under the drilled location (e.g. water).

VI. Force Majeure, Impediments to Performance

Force majeure of any kind, unforeseeable production, traffic or shipping disturbances, fire, floods, unforeseeable shortage of labor, utilities or raw materials and supplies, strikes, lockouts, acts of government and any other hindrances which delay, prevent or may reasonably be deemed to frustrate the performance of work or services, shipment or taking of delivery and which are beyond the control of the party obligated to perform, shall release the latter from its obligation to perform the work or services or take delivery for the duration and to the extent that the hindrance prevails. If binding deadlines are exceeded by more than eight weeks due to the hindrance, either party shall have the right to cancel the Contract.

VII. Offsetting of claims, refusal to pay

  1. Offsetting of orderer's claims against our claims is excluded, unless orderer's claims are undisputed, legally effective or ready for decision.
  1. This also applies to asserting the right of refusing payment.

VIII. Notification of Defects

  1. Recognisable deficiencies must be reported to the Contractor within two weeks after completion in written form. Other deficiencies must be reported in written form within two weeks after their discovery. Is the report delayed then the orderer loses all rights to claims against defects.
  1. In case the work of the Contractor is deficient, the Contractor will repeat the affected work process free of charge. In case that the remedy by the Contractor is failed, the orderer has the right to abate the price the affected work. Further claims based on deficiencies are excluded.

IX. Periods of limitation

Warranty claims shall expire with effect from one year from the beginning of the statutory period of limitation. In cases that fall und er § 634a no. 2 of the Federal Civil Code (BGB) warranty claims shall expire with effect from two years from the beginning of the statutory period of limitation. In other cases warranty claims shall expire with effect from one year after inspection of the contractors work. Mandatory regulations governing the statutory period of limitation or the question of liability, such as, for example, liability for the assumption of a guarantee, liability for willful intent and gross negligence, for death, physical injury or damage to health, for the violation of essential contractual obligations, liability in accordance with the product liability law and the provisions relating to the sale of consumer goods shall remain unaffected.

X. Acceptance

  1. The Contractor's services shall not be subject to an acceptance procedure unless the orderer and the Contractor have agreed in writing that a formal acceptance is required.
  1. In case a (partial) acceptance for the services of the Contractor has been agreed, the Contractor shall inform the orderer in writing about the readiness for acceptance. Acceptance shall then occur within 7 days from the declaration of readiness.
  1. Acceptance can not be withheld for minor deficiencies.
  2. The orderer shall bear any cost of acceptance.
  1. In case the orderer should refuse to accept the services the orderer shall provide in writing reasons for refusal of acceptance within 14 days of declaration of readiness for acceptance. In case of a justified refusal the Contractor shall remedy any deficiencies in the performed services in an appropriate time and shall render the services in an acceptable manner.
  1. In case that an acceptance is not demanded, the performance shall be deemed to have occurred within 14 days from the declaration of readiness for acceptance unless the orderer provides a written justification of its refusal to accept the services.
  1. Should the orderer start to use the services or the resulting product of the services without raising any objections, then the acceptance is deemed to be occurred.

XI. Transfer of risk

  1. The risk of accidental destruction or degradation shall pass to the orderer immediately upon completion of the services by the Contractor, unless the service is subject to an acceptance. In case of services subject to acceptance the risk shall pass to the orderer upon acceptance.
  1. In case the start of the performance of the service or any other operation is delayed for reasons not imputable to the Contractor, or the orderer is in delay of acceptance for any other reason, then the risk shall pass to the orderer upon the start of the delay of acceptance.
  1. The risk of loss, accidental destruction or degradation of material provided by the orderer shall be borne by the orderer at any time, except in case of wilful misconduct or gross negligence on the Contractor's side.

XII. Terms of Payment

  1. The prices are quoted in Euro. Our services shall be invoiced immediately after the performance of the services, unless the services are subject to a (partial) acceptance. Services which are subject to a (partial) acceptance shall be invoiced after having obtained the (partial) acceptance.
  1. The invoice amount shall be payable without deduction within 14 days upon receipt of the invoice
  1. Under contracts with duration of more than one month we may invoice all services which are not subject to an acceptance at the end of each calendar month throughout the duration of the contracL In case that an acceptance is agreed, we may require that a monthly partial acceptance is performed.

XIII. Partial Invalidity

If any clause of these General Terms and Conditions should be wholly or partially void, the validity of the remaining clauses and the other parts of such clause shall not be thereby affected. The parties shall replace any invalid arrangement by an effective one which conforms as far as possible to the economic purpose of the invalid clause.

XIV. Place of jurisdiction and place of performance

  1. These Terms and Conditions are governed exclusively by the laws of the federal Republic of Germany. The application of international laws, agreements and conventions is excluded.
  2. Place of iurisdiction for both parties shall be Münster. Germany.