TERMS & CONDITIONS - Valeriy Berezovsky - Naval Architect & Marine Designer

Valeriy Berezovsky - Naval Architect & Marine Designer
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TERMS & CONDITIONS

SERVICES
 
2019
 
 
1.    DEFINITIONS
The following definitions apply in these General Terms and Conditions:

1.1.    Designer:
The natural person who has made it his business to offer the provision and performance of Work Activities (defined below).

1.2.    Client:
The person, including the natural person and/or his legal successor, the commercial partnership, professional partnership or legal entity that negotiates or enters into a contract with the Designer for the provision of services or work activities offered by said Designer.
 
1.3.    Contract:
The contract whereby the Designer binds himself to the Client in respect of performing Work Activities (defined below) and/or the terms of Rights to Build (defined below) and/or the Contract and the General Terms and Conditions applicable to them. The Contract only comes into effect in writing, for example per written contract, per email or by signed quotation.
 
1.4.    Vessel:
A boat, sailing or motor yacht, commercial craft or other floating or sailing object, or one or more parts thereof, designed by the Designer in connection with the Contract.

1.5.    Order:
The order to perform Work Activities as specified in the Contract and the applicable General Terms and Conditions.

1.6.    Work Activities:
All work that the Designer performs for the Client in connection with the Contract. The Designer is authorized to engage third parties for the purpose of carrying out Work Activities.

1.7.    Design:
A Vessel designed by the Designer. The Design can consist of a Concept Design, a Preliminary Design and a Final Design (defined below). These designs are created in the Concept Design Phase, the Preliminary Design Phase and the Final Design Phase, respectively. The Production Drawings and As-Built Drawings (both defined below) are not part of the Design.

1.8.    Variation:
A Design that is based on an existing Design but deviates on essential points.

1.9.    Design Drawings:
Drawings of the Vessel with a limited amount of detail in order to provide a general view of the nature and the general outline of the Vessel. These drawings are sufficiently detailed for a potential technical inspection. The Design Drawings are used as the basis for producing the Production Drawings. Depending on the phase of the Work Activities, this may constitute Concept Design Drawings, Preliminary Design Drawings or Final Design Drawings (defined below).

1.10.  Production Drawings:
Detailed drawings for use in the production process. These drawings are also called Working Drawings. The Production Drawings are not part of the Design.

1.11.  Working Drawings:
Another name for Production Drawings.

1.12.  Concept Design:
A schematic plan of the Vessel that only provides general insight into the shape, lines, functions and sizes. Concept Design can serve as a basis for the Preliminary Design.

1.13.  Concept Design Drawings:
Design Drawings produced during the Concept Design phase. These drawings describe the Concept Design.

1.14.  Preliminary Design:
A description of the Vessel by means of Preliminary Design Drawings and other documents based on the Concept Design, but with a greater level of detail. These may include, as far as applicable and agreed:
 
a.    A general arrangement plan in which the layout and design are laid down. This general arrangement plan is based on preliminary design parameters, provisional lines plan and preliminary calculations with regard to functionality, speed, load capacity, weight, rigging, stability, durability and engine power;
b.     Information with respect to the overall design of the structure for the provisional calculation of weight and centre of gravity, and a preliminary assessment of strength and stiffness.
c.    A concise specification possibly incorporated into the drawings, which is sufficiently detailed to enable a professional yard to make cost estimation.

1.15.  Preliminary Design Drawings:     
Design Drawings made during the Preliminary Design Phase. These drawings describe the Preliminary Design.

1.16.  Final Design:
The final description of the Vessel by means of Final Design Drawings and other descriptive documents. These  may include, as far as applicable and agreed:

  • Technical Specifications and Equipment List
  • General Arrangement:
     - Outboard Profile
     - Sail Plan (if applicable)
     - Deck Plan
     - Interior Layout
  • Lines Plan
  • Construction Drawings of the Hull, Deck and Superstructure:
     - Construction Plan and Longitudinal Sections
     - Transverse Sections and Bulkheads
     - Shell Expansion
     - Fuel and Water Tanks
     - Engine Foundation
     - Chain Pates (if applicable)
     - False Keel (if applicable)
     - Construction Details
     - Welded Connection Details (for metal hull)
     - Laminate Schedule (for FRP hull)
     - Material Specification
  • Rudder (Blade, Stock, Trunk and Bearings)
  • Propeller Shaft Line & Brackets
  • Anchoring and Mooring Equipment
  • Openings in Hull, Deck and Superstructure
  • Weight and Centre of Gravity calculations
  • Hydrostatic and Stability calculations
  • Masts and Rigging (if applicable)
  • Steering Gear System
  • Propulsion System
  • Engine Installation (Engine Room Layout)
  • Engine Exhaust System
  • Fuel and Water Tanks (Fills, Vents and Drains)
  • Fuel Piping Diagram
  • Water Piping Diagram
  • Bilge Piping Diagram
  • Electrical Schematic
  • LPG System (if applicable)
  • Fire Protection
  • Navigation Lights
  • Lifesaving and Safety Equipment
  • Discharge Prevention

1.17.  Final Design Drawings:
Design Drawings made during the Final Design Phase. These drawings describe the Final Design.

1.18.  As-built Drawings:
Drawings of the Vessel as it is finally built.

1.19.  Builder:
The shipyard, metal construction company, woodworking company, etc. that is building the Vessel by order of the Client.

1.20.  Sea Trial:
One or more detailed tests and Sea Trials in the context of the Client’s acceptance of that which is built by the Builder.

1.21.  Supervision of the Construction:
Monitoring the building and representing the client in all areas related to the construction process.

1.22.  Building Cost:
The total price of the constructed Vessel as it leaves the shipyard, exclusive of VAT. The Fee of the Designer is not included in this price.

1.23.  Building Contract:
The agreement between the Builder and the Client relating to the building of the Vessel. The Designer is not a party to this Contract.

1.24.  Right to Build:
The right of use the design and related documents for the construction of one or more Vessels. Each Right to Build states at least:

a.     the number of Vessels that may be built on the basis of the Design;
b.     if the right is exclusive or whether third parties may use the Design;
c.     the period during which the Design may be used;
d.     the price for the right to use.

1.25.  Series Construction:
The building of more than one Vessel using the same design.

1.26.  Right to Build a Series:
A Right to Build an agreed number of Vessels in a given period.

1.27.  Fee:
The amount to be paid to the Designer in connection with the execution of the Contract.

1.28.  Workday:
Every day that is not a Saturday and Sunday.

2.    APPLICABILITY

2.1.     Applicable:
These General Terms and Conditions apply to all offers, contracts and other legal relations between the Designer and the Client. The provisions of these General Terms & Conditions can be waived by the parties. Any deviations shall apply only in so far as they are agreed in writing.

2.2.     Exclusion:
The Client accepts the application of these General Terms and Conditions. The applicability of any other general conditions than these is expressly excluded.

2.3.     Priority Rule:
In the event that other general conditions also apply to the offer and/or Contract, leading to contradictory stipulations, the relevant provisions of these General Terms and Condition will take precedence over those of the other.

3.    RELATIONSHIP BETWEEN CLIENT AND DESIGNER

3.1.     Trust:
In the relationship with the Client, the Designer acts as a confidant, providing advice about technical and aesthetic issues, protecting the interests of the Client to the best of his knowledge and abilities, and realizes these interest to his best endeavours.

3.2.     Authorization:
The Designer acts as a representative of the Client in the execution of the Contract. Within the context of the Contract, this authorisation is unrestricted and unconditional until the time that the Contract ends. The authorisation shall in any case reasonably allow the Designer to carry out all transactions within the context of the Contract at his own discretion.

4.    THE ORDER, OFFER, CONTRACT, DELIVERY

4.1.     Components of the Order:
The Order may include one or more of the following Work Activities:

a.     Making a Concept Design;
b.     Making a Preliminary Design;
c.     Making a Final Design;
d.     Making a Variation of an existing Design;
e.     Preparation a Production Drawings;
f.      Preparation As-Built Drawings;
g.     Providing Supervision of the Construction;
h.     Providing advice;
i.      Providing assistance and support;
j.      Providing expertise;
k.     Other services.

4.2.     Offer without obligation:
Each offer is provided entirely without obligation. This also applies if a term for acceptance is mentioned.

4.3.     Withdrawal:
An offer made without obligation may be withdrawn:

a.    The designer can withdraw his accepted offer within three business days without any liabilities.
b.    The client can withdraw his acceptance of the offer within three business days of the acceptance without any liabilities.

4.4.     Realization of the Contract:
The Order shall be deemed as a final and come into effect when:

a.    The offer made by the Designer is accepted by the Client and the deadline for withdrawal has expired;
b.   The offer has been provided by the Designer and the Client has confirmed that the acceptance is irrevocable and has requested the Work Activities to begin.

4.5.     Delivery Time:
An agreed Delivery Time is only offered as an indication and is not a deadline unless this is specifically agreed.

4.6.     Delivery time in the event that the Order is amended:
If amendments are agreed upon during the execution of the Contract, the originally agreed Delivery Time will automatically expire.

4.7.     Exceeding the Delivery Time:
In the event that the Designer expects the Delivery Time to be exceeded, he needs to notify the Client and state the reasons. The Delivery Time may be repeatedly increased by the Designer by 10% of the original Delivery Time; a minimum of one week shall apply.

4.8.     Default due to late delivery:
The Designer shall never be in default of a non-strict deadline. The Designer and Client may agree in writing that certain deadlines are strict deadlines. The Designer shall then not be in default of an agreed deadline unless an agreed deadline is exceeded by more than 20% due to causes entirely attributable to the Designer and the legal conditions for default have been fully satisfied.
 
In the event that an agreed Delivery Time is exceeded, the Designer shall never be liable for damages to Client, unless the exceeding of the deadline is due to intent or deliberate recklessness by the Designer.

5.    THE RIGHT TO BUILD

5.1.     Personal Right:
The rights mentioned in this article are personal rights and shall only be granted to the Client. The license is not tied to a mould or a computer file, an image or any other medium for holding information. The right to use the Design is not transferable to third parties.

5.2.     Single Right to Build:
When a Final Design is delivered by the Designer and the agreed price is paid by the Client, the Client is then automatically entitled to use the Design Drawings for a single Vessel to be built in accordance with the Design.

5.3.     General Right to Build a Series:
The parties may agree that the Client has the right to use the Design for the construction of more than one Vessel.

5.4.     Commencement of the Right to Build a Series:
Client only acquires the right to use the Design for the construction of more than one Vessel, after the parties have expressly agreed upon this in writing and the Client has fulfilled its obligations to the Designer.

5.5.     Continuation of the Right to Build a Series:
After the completion of a Vessel on the basis of an obtained Right to Build a Series, if the Client wishes to proceed with the construction of another Vessel in the same series, he has the right to do so from the moment he has fully complied with all his obligations to the Designer.

5.6.     Exclusive Right to Build (a series):
The parties may agree that the Client has the sole right to use the Design for the construction of one or more Vessels, thereby excluding third parties.

5.7.     Lapse of exclusive Right to Build due to a stop in construction:
If within one year of obtaining the exclusive Right to Build, the construction of a Vessel is interrupted or halted, the Designer may request in writing that the Client commences or continues construction. If the Client does not fulfil this written request within one year, all his rights to use the Design to build of that type of Vessel will lapse.

5.8.     Execution of/amendments to the Design:
The Right to Build may only be used to build of a Vessel that conforms to the Design Drawings and other documents made available by the Designer. The Client and/or Builder are not permitted to make Amendments to the Design or to depart from the Design in the construction of the Vessel.
 
If the Client and/or Builder deem a different type of construction or execution to be desirable or necessary, they must consult with the Designer prior to carrying these out.

6.    RESPONSIBILITIES OF THE DESIGNER

6.1.     Complying with requirements:
The Designer is responsible for ensuring that his design complies with reasonable requirements of quality and functionality in connection with the purpose for which the Client wishes to use the Vessel.

6.2.     Additional requirements:
The Designer will also take into account additional requirements that the Client have submitted to the Designer in the period between entering into the Contract and the completion of the Preliminary Design, including the specifications.

6.3.     Informing the Client:
If the Designer is of the opinion that the additional requirements cannot be realized in the Design, he must inform the client in a timely manner.

6.4.     Correct execution:
The Designer is responsible for the correct execution of the calculations and drawings for the Design. The Designer is not responsible for the correct execution of the Design by the yard.

6.5.     Aesthetic appreciation:
The aesthetic appreciation of the Design is no grounds for assessing whether the Designer fulfilled his obligations towards the Client.

7.    POWERS AND DUTIES OF THE DESIGNER

7.1.     Amendment to the Order:
The Designer is authorized to deliver a Design that is different from what was agreed in the event that the changes are required in order to comply with applicable regulations or, in the case the changes are minimal, when he believes that these represent an improvement.

7.2.     Advice during the Supervision of the Construction:
If the Contract includes Supervision of the Construction then the Designer has the right, without any further approval from the Client being required, to advise the Builder about deviations from the Design.

7.3.     Conditions to recommend deviating from the Design:
The right to recommend a deviation from the Design referred to in the preceding paragraph shall be limited to changes in construction requirements that in the opinion of the Designer are necessary in connection with safety and/or suitability.
 
The Designer is responsible for ensuring that these deviations remain within the framework of the Construction Order and, using his own discretion, ensuring that the practical usefulness of the Vessel does not suffer with respect to its intended purpose, and that the agreed Building Cost and Delivery Time are not exceeded.

7.4.     Assessment of construction progress:
The Designer who is ordered to carry out the Supervision of the Construction is authorized  to assess whether the work has progressed sufficiently, considering the situation on the day of inspection, for the Builder to be entitled to receive payment of (a part of) the Building Cost in accordance with the provisions of the Construction Contract.

8.    INTELLECTUAL PROPERTY

8.1.    Calculations:
The results of the calculations are used in the Design. These calculations are not a separate part of the documentation delivered to the Client and are not submitted.

8.2.    Ownership of originals and copies of drawings, documents, etc.:
The Designer will always retain ownership of all the originals and copies of sketches, drawings, calculations, estimates, specifications, budget estimates, reports, computer files, image media and any other media for holding information, as well as models and maquettes created for and by the Designer in the context of the Order regardless of whether they were made on behalf of the Client or third parties.

8.3.    Intellectual property rights:
Intellectual property rights as provided for in the Copyright Law in relation to the Design, Production Drawings, sketches, photographs and other images of the Design or part thereof, the models and construction moulds, as well as all model, computer files, image media, or other media for holding information that form a part of the Design remain the exclusive property of the Designer.

8.4.    Other use of the Design:
Unless otherwise agreed, the Designer is free to use the Design or parts thereof on behalf of other clients. This is understood to mean in any case the Intellectual Property rights to use the Design and/or transfer or change the Design at its discretion for the construction of one or more vessels.

8.5.    Promotion:
The Designer has the right to make images of the exterior and interior of the Vessel. The Designer has the right to modify, reproduce, and publish these images as well as the general plan for promotional purposes in the broadest sense of the word.

8.6.    Brand Name:
The Designer has the right to place his name, logo or brand name on the physical result of his Design, in the understanding that this is done in all reasonableness, without damaging the appearance or the use of the Vessel.

8.7.    Removal of the name due to infringement:
Without affecting to any other rights concerning infringement of copyright, the Client is obligated to remove the name, the logo or brand name of the Designer at the first request of the Designer.

9.    LEGAL LIABILITY OF THE DESIGNER

9.1.     Limitation of legal liability for damage:
The Designer is only legally liable for damage suffered by the Client arising out of an attributable breach of contract by the Designer in the fulfilment of his obligations or due to any wrong doing or an illegal act by the Designer.

9.2.    The Designer has the right to limit or remedy the damage at own expense.

9.3.    The Designer is not liable for damages caused by intent or gross negligence of employees or third parties not managed by him in the execution of the Order.

9.4.    The Designer is not liable for damage consisting of or resulting from defects in relation to the capacity and the quality and/or the suitability of materials and other items when these are specified or supplied by the Client.

9.5.     The Designer is not liable for damage after the delivery of the vessel, including a Vessel, that arose as a result of inappropriately qualified use, insufficient use, lack of care, and/or normal wear and tear or is caused by modifications made to the Vessel or vessel by the user or a third party.

9.6.    The Designer is not liable for damage that the Client suffers as a result of acts or omissions of the Builder or suppliers in violation of the drawings, specifications and/or other conditions unless he is attributable for the failure to exercise control.

9.7.     Errors in the Vessel/components supplied by third parties:
The Designer shall not be liable for errors related to components of the vessel not designed by him or not designed or constructed under his supervision. Nor is he liable if the legal liability in the contract documents or the contractor's contract or delivery is transferred to the Builder.

9.8.     Legal liability for technical fitting:
The Designer only liable for the technical fit of components in the vessel that are designed and manufactured by third parties in so far as the Designer has explicitly indicated that these components are part of the Design.

9.9.     Legal liability for third party components:
The Designer is in no way responsible for the operation, performance or results, etc. of any fitted components from third parties. Nor is the Designer responsible for the operation, performance or results, etc. of any fitted components from third parties in conjunction with the Vessel.

9.10.  Legal liability for price estimates:
The price estimates of the Designer are always calculated to the best of his ability, but are provided without obligation. The Designer is not liable if it appears that the Vessel or any part of it cannot be realized within the estimated price.

9.11.  Legal liability and legal provisions:
In no event shall the Designer be liable if the Design complies with the following conditions:

a.     it is realized in accordance with the received Order, and
b.     it complies with the European Recreational Craft Directive and/or to the regulations of a recognized Classification Society for the relevant type of vessel.

9.12.  Restriction of the size of the legal liability:
The legal liability of the Designer is in all cases limited to the agreed Fee.

9.13.  Termination of liability:

a.     The liability of the Designer ends after a successful technical Sea Trial.
b.     Any claims on the Designer, except for those recognized by him in writing, lapse twelve months after the date on which they were made.

10.  RIGHTS AND OBLIGATIONS OF CLIENT

10.1.  Protection of the Design:
The Client is not allowed to make any changes to the Design and Production Drawings without prior permission of the Designer.

10.2.  Confidentiality:
The Client is obligated to maintain absolute confidentiality of all designs, calculations, computer files, Production Drawings, Design Drawings, sketches, models, and all other representations of the design, or parts thereof, that he has in his possession or of which he has knowledge that the Designer has supplied to him in connection with the Order.
 
In so far as the exchange of information is necessary in order to carry out repairs or maintenance work, the requirement to maintain confidentiality as described in the previous paragraph remains and the Client shall not pass information to third parties unless he has notified the Designer. In no event shall the Client share more information than is strictly necessary for the repair or maintenance work to be earned out to the Vessel.
 
In no event is the Client permitted to share the confidential information referred to in the preceding paragraphs of this article with third parties that intend to use the information for their own purposes or for the benefit of others.

10.3.  Examination and claims:
The Client should examine the Vessel upon delivery after the Sea Trial. The Client must check that the Vessel complies with his Order.
 
If visible faults or defects are detected for which the Designer is liable as a consequence of the Order, the client must report this in writing to the Designer upon delivery.
 
Non-visible faults or defects for which the Designer is liable as a consequence of the Order must be reported in writing to the Designer within ten days of discovery, and at the latest six months after the Sea Trial or delivery.

10.4.  Publicity for advertising purposes on behalf of Client:
The Client has the right to use the general plan and photographs of the designed Vessel for advertising and publicity purposes. Other drawings of the Design may only be published by the Client with written permission from the Designer.
 
When publishing drawings, photographs or descriptions of the vessel designed, the Client and/or Builder must:

a.     Name the Designer of the Vessel;
b.     State the Copyright of the Designer;
c.     Send the Designer a copy of the publications.

10.5.  Termination of the Contract:
If the Contract is terminated by the Client for any other reason than the default of the Designer in respect of its obligations to the Client, the Client must fulfil the following conditions:
 
a.     The Contract is legally terminated in writing and such termination is received by the Designer, and
b.     The Client has paid the Fee for which the Designer would be entitled to if he would complete the part of the Contract that he was working on at that time.

10.6.  Surviving provisions:
In the event the Contract is terminated, all provisions relating to Confidentiality and Intellectual Property rights shall be fully maintained.

11.  PRICE

11.1.  The Designer has the right to a payment of:

a.     A Fee for the any Work Activities performed by him and for any other hours completed on behalf of Client;
b.     Royalties for the use of the Design;
c.     Reimbursement for expenses incurred by the Designer.

11.2.  The Price shall be in Euros or Dollars.

12.  FEE STIPULATIONS

12.1.  The Design Fee:
The Design Fee can be determined in the following ways:

a.     Based upon a Fixed Price;
b.     Based upon the number of Hours Worked;
c.     Based upon a percentage of the total Building Cost;
d.     Based upon any other criterion agreed upon by both parties.

12.2.  Fixed Price:
The parties may agree on a Fixed Price in the event that it is easy to estimate the required Work Activities in advance.

12.3.  Fee depending on the number of Hours Worked:
If the parties have agreed that the Fee will be calculated in proportion to the number of Hours Worked, the parties shall adopt a standard Hourly Rate.

12.4.  Fee depending upon a percentage of the Building Cost:
If the parties have agreed that the Fee will be calculated depending on the Building Cost, the different installment amounts will be calculated depending on the Building Cost previously estimated by the Designer.

12.5.  Calculation of Building Cost:
The Building Cost is understood to mean the total Building Cost as charged by the Builder to the Client for the construction of the Vessel, including the supply of goods and services by any third parties.
 
The Building Cost estimated by the designer is retained as a guideline for determining the Design Fee. The final Design Fee is calculated over the actual Building Cost of the Vessel.

12.6.  Fee for amendments/more work:
In so far as the Order has been extended, this is due to amendments or additional work, the Designer will charge for the associated hours separately at the time that those Work Activities have been completed or will clearly identify this in the final invoice.

12.7.  Payment of the Fee in installments:
The Fee payable shall be charged in installments according to the agreements that the parties came to upon entering into the Contract. In any case, the Designer shall be entitled to payment of installments after completion of:

a.     Concept Design;
b.     Preliminary Design;
c.     Final Design;
d.     Production Drawings;
e.     As-built Drawings;
f.      For each designed Variation.
 
Furthermore, the Designer is entitled to charge for the hours worked by him during Supervision of the Construction and the Sea Trial.

12.8.  Suspension of Work Activities:
If an installment is not paid by the Client, the Designer has the right to immediately suspend all Work Activities until the time when the Client has fulfilled all obligations towards him.

13.  ROYALTIES

13.1.  Royalties for the construction of the first Vessel:
In the event that the Work Activities belong to the Design of a Vessel, the Royalties associated with the construction of the first Vessel to that Design will be included in the Design Fee.

13.2.  Royalties for the construction of more than one Vessel:
When using the Design for the construction of more than one Vessel, the Royalties are payable for each Vessel that is to be built.

13.3.  Royalties for an existing Design:
If the parties have agreed that the Client may use an existing design for the construction of one or more Vessels, the Client must pay the Royalties to the Designer in accordance with the agreements made by the parties.

13.4.  Start of rights to use the Design:
Client obtains the user rights to the Design (and associated Design Drawings and Production Drawings) from the day following the day on which the Royalties are received by the Designer and all other obligations arising from the Contract for the Designer are fulfilled.

14.  EXPENSES

14.1.  Reimbursement of expenses:
All expenses incurred in connection with the execution of the Contract by the Designer will be passed on to the Client.

14.2.  Types of expenses:
Expenses passed on is understood to mean but is not limited to: the expenses associated with hiring a third party, the use of materials, travel and accommodation, translation, reproduction, testing, certification, model tests, inspections, tests, office expenses, legal assistance in association with disputes with third parties, etc.

15.  PAYMENT

15.1.  Term of payment:
Unless otherwise agreed, the term of payment is ten days after receipt of the invoice. Invoices can be sent by post or email. Parties will therefore need to agree which post address or email address the Designer should use.

15.2.  Late payment:
When the term of payment is exceeded the Client is always immediately in default and is then liable until full payment is made to the Designer of the full amount.

16.  DISPUTES

16.1.  Applicable law:
Ukrainian law should be applied to all agreements between the Client and the Designer.

16.2.  Settlement of a dispute:
All disputes arising from or related to the Contract shall be settled by the competent court or through arbitration.

16.3.  Competent court:
The court in the district where the Designer is located and/or office is registered shall have jurisdiction over the settlement of a dispute.

17.  FINAL CLAUSES

17.1.  Amendments:
The Designer is free to modify these General Terms & Conditions annually. The amended version of these Terms and Conditions shall apply to all legal relationships between the Client and the Designer from the day that the modified version is received by the Client and he has not immediately made a written objection against them.

17.2.  Communications:
All communications including offers and acceptances - must be made in writing by one party to the other party. In writing is understood to mean in any case, by mail, fax or email.

17.3.  Deviations:
The Client and the Designer may deviate from the stipulations of these General Terms and Conditions by mutual consent.





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