GTC
General Terms and Conditions of Sale and Delivery of enwitec electronic GmbH
I. Validity of the General Terms and Conditions of Sale and Delivery
The Supplier’s offers, the acceptance of orders and all deliveries are made exclusively on the basis of the following “General Terms and Conditions of Sale and Delivery”. The Purchaser’s terms and conditions of purchase are hereby expressly rejected; they shall not be binding on the Supplier even if the Supplier does not object to them again upon conclusion of the contract. Anything to the contrary shall only apply if the Supplier expressly agrees in writing to the validity of the Purchaser’s terms and conditions.
II Offer and conclusion of contract
1. the supplier’s offers are subject to change and subject to the supplier’s written confirmation, unless expressly agreed otherwise in writing. The acceptance of orders placed by travelers or representatives remains reserved and also requires the written confirmation of the supplier.
Documents belonging to an offer, such as illustrations, drawings and weight specifications as well as more detailed descriptions, are only approximate and serve the approximate description and specification of the delivery item. The same applies to performance and consumption data. This information does not constitute a guarantee for the quality or durability of the delivery item. The supplier reserves the right to make changes to the dimensions and weights of the delivery item until delivery.
2. the supplier reserves the right of ownership and copyright to all illustrations, drawings, calculations and other documents, as well as brochures and catalogs. Any use outside the underlying contract, as well as disclosure to third parties, requires the express written consent of the supplier.
III Prices and payments
1. prices do not include packaging, freight and insurance ex works and do not apply to repeat orders.
packaging costs are charged separately, for transport and insurance as incurred and agreed.
framework agreements are not affected by these regulations, corresponding conditions are agreed separately.
2. the prices are based on the production costs at the time of the supplier’s written confirmation. If these production costs increase by the time of delivery due to an increase in taxes, prices for raw materials, auxiliary materials, energy, freight or wages, the Supplier shall be entitled to adjust the agreed price accordingly. The purchaser cannot derive a right of withdrawal from such a price increase.
3. if the agreed delivery period is more than four months after the conclusion of the contract or if the delivery actually takes place more than four months after the conclusion of the contract for reasons for which the customer is responsible, the supplier shall be entitled to charge the price valid on the day of execution of the delivery.
4. the agreed delivery price plus statutory VAT is due for payment upon receipt of the invoice, irrespective of any other agreement. Payments to traveling salesmen or representatives of the supplier are not permitted without written authority to collect. If there are several outstanding invoices, payments shall first be offset against the older claims; if costs and interest have already been incurred, payments shall first be offset against costs, then interest and finally against the main service, again in each case against the older invoices.
5. retention and offsetting against the purchase price are only permissible with undisputed or legally established claims. The customer is only authorized to exercise a right of retention to the extent that his counterclaim is based on the same contractual relationship.
6 Unless otherwise agreed in writing, invoice amounts are due net within 30 days of the invoice date.
IV. Delay
1. Statutory interest shall be charged if the payment deadlines are exceeded or in the event of subsequent deferral.
2. if the customer does not cash a cheque or if the supplier becomes aware of a significant deterioration in the customer’s circumstances which jeopardizes the claim for payment, the entire remaining debt shall become due.
If the entire remaining debt is not paid immediately, the customer’s right to use the delivery item shall expire.
The supplier shall be entitled either to repossess the delivery item without waiving its claims until they have been satisfied or to withdraw from the contract. If such circumstances become known after conclusion of the contract but before execution of the delivery, the supplier may refuse performance and demand concurrent payment against delivery, even if other payment terms and deadlines have been agreed; alternatively, the supplier may demand the provision of security.
3. if the customer does not fulfill his payment obligations after a reminder with a reasonable grace period for payment, the supplier is entitled to take back the delivery item or to withdraw from the contract. In the case of a partial payment transaction, the Supplier may withdraw from the contract due to the Purchaser’s default in payment under the conditions provided for by law.
4. in the event of withdrawal from the contract, the supplier is further entitled to demand compensation for damages instead of performance or reimbursement of his futile expenses if the supplier had previously set the customer a reasonable deadline for performance without success. If the Supplier demands compensation instead of performance, it shall be entitled to charge 25% of the agreed purchase price without deduction as a lump sum for damages.
The Supplier shall be at liberty to prove and claim higher damages; the Purchaser shall also be at liberty to prove that no damages at all or significantly lower damages than the lump sum demanded have been incurred.
This shall also apply if the Purchaser is in default not only with payment but also with acceptance of the goods or any other obligation to cooperate.
5. if the contract is rescinded after delivery of the goods, the supplier shall be entitled to compensation for the transfer of use in addition to the claim for the return of the goods; this claim shall be independent of claims for damages and compensation for futile expenses.
6 All of the above provisions shall also apply in cases of direct delivery to the end customer by the Supplier at the behest of the Purchaser.
V. Delivery time
1. delivery and delivery time or, if applicable, collection by the customer shall be agreed separately.
2. the delivery period shall commence on the date of dispatch of the order confirmation and shall be deemed to have been met if the goods have left the factory by the end of the delivery period. The delivery period shall be extended appropriately in the event of labor disputes, in particular strikes and lockouts, as well as in the event of unforeseen obstacles, such as operational disruptions, shortages of raw materials, traffic disruptions, etc., which are beyond the control of the supplier, insofar as such obstacles demonstrably have a significant influence on the completion or delivery of the delivery item. This shall also apply if the circumstances occur at upstream suppliers or subcontractors.
3. the supplier shall not be responsible for the aforementioned circumstances even if they occur during an already existing delay.
4. compliance with the delivery period requires the fulfillment of the customer’s contractual obligations, in particular the provision of any official certificates or approvals. Otherwise, the delivery period and delivery deadline shall be extended accordingly.
VI Shipping
All shipments shall be made at the Supplier’s best discretion at the Customer’s expense.
The Supplier reserves the right to choose the mode of shipment; no claims against the Supplier can be derived from the choice made.
VII. Shipping to foreign countries
Shipments to foreign countries may be subject to additional general terms and conditions of sale for export and other additional special agreements.
In addition, the Incoterms® 2020 are deemed agreed; the supplier is free to use them.
VIII. Transfer of risk and acceptance
1. the risk shall pass to the customer when the goods are handed over to the carrier, irrespective of whether the supplier or the customer has commissioned the carrier, even if partial deliveries are made or the supplier has assumed other services, irrespective of any other agreements.
2. if dispatch, which may be effected by rail or forwarding agent at the discretion of the supplier, is delayed due to circumstances for which the customer is responsible, the risk shall pass to the customer from the day of readiness for dispatch; however, the supplier shall be obliged to take out the insurance requested by the customer at the customer’s request and expense. Delivered items, even if they have insignificant defects, are to be accepted by the purchaser without prejudice to the rights under IX.
3. partial deliveries are permissible insofar as reasonable for the customer.
4. if acceptance of the goods by the customer is delayed, the risk shall pass to the customer from the effective offer of performance by the supplier.
5. if the Supplier incurs additional costs due to the Purchaser’s default of acceptance, the Supplier may demand compensation from the Purchaser.
IX. Warranty
- If there are defects in the delivery, these must first be duly notified by the customer in accordance with § 377 HGB.
- Defects shall be remedied at the discretion of the Supplier or the defective items shall be replaced by delivery of new goods free of defects; the replaced parts shall become the property of the Supplier. The Supplier reserves the right to make two (2) attempts at subsequent performance.
- Of the direct costs arising from the repair or replacement delivery, the supplier shall bear the costs of the replacement part – insofar as the complaint proves to be justified.
- Defective goods shall be repaired at the manufacturer’s premises. Expenses for disassembly and reassembly, transportation, packaging, etc. shall be borne by the customer.
- Manufacturer’s warranties passed on within the scope of delivery, as well as manufacturer’s certificates of conformity and/or safety, do not constitute the supplier’s own warranty and do not constitute a contractual quality agreement on the part of the supplier.
- In the case of transactions in which a consumer is not involved, the Supplier shall not assume any warranty for product components provided by the Customer.
- In the case of minor defects, as well as natural wear and tear, a warranty is excluded.
- Recourse claims of the purchaser are excluded in particular if the purchaser has made agreements with his customer that go beyond the legally mandatory claims for defects.
X. Statute of limitations
Warranty claims shall lapse two years after delivery of the goods.
However, the statutory period shall apply if the law prescribes longer periods for claims for material defects in buildings and items for buildings, for the customer’s right of recourse pursuant to Sections 478, 479 BGB or for construction defects.
The statutory limitation period shall also apply in cases of injury to life, limb or health, in the event of an intentional or grossly negligent breach of duty by the supplier and fraudulent concealment of the defect.
XI. Liability for damages
- The Supplier shall be liable for damages in accordance with the statutory provisions if the Customer asserts claims based on intent or gross negligence, including intent or gross negligence on the part of representatives or vicarious agents. Insofar as the Supplier is not accused of intentional breach of contract, the liability for damages shall be limited to the foreseeable, typically occurring damage.
- The Supplier shall be liable in accordance with the statutory provisions if a material contractual obligation is culpably breached. In this case, liability for damages shall be limited to the foreseeable, typically occurring damage.
- Liability for culpable injury to life, limb or health remains unaffected; this also applies to mandatory liability under the Product Liability Act.
- Unless otherwise stipulated above, liability is excluded.
XII Retention of title
1. the supplier retains title to the goods until receipt of all payments under the contract.
The customer is obliged to treat the goods with care, in particular to insure them at his own expense against fire, water and theft at replacement value. The customer must carry out any maintenance and inspection work carefully and in good time at his own expense.
2. in the event of seizure, confiscation or other access by third parties, the customer must inform the supplier immediately in writing in order to enable the supplier to exercise its rights arising from the retention of title.
In the event of a breach of this provision, the customer shall be liable for any loss incurred by the supplier.
3. the customer is entitled to resell the goods in the ordinary course of business, but he hereby assigns to the supplier all claims in the amount of the gross purchase price of the supplier’s claim to which he is entitled from the resale of the goods. This shall apply irrespective of whether the goods are resold without or after processing.
The customer shall remain authorized to collect the claims even after assignment; this shall not affect the supplier’s authority to disclose the assignment of claims and to collect the claims itself. This shall not apply as long as the Customer meets its payment obligations, does not default on payment and no application for the opening of composition or insolvency proceedings is filed. In this case, the Purchaser is obliged to provide the Supplier immediately with all necessary information about its buyers and to hand over the necessary documents and to enable the Supplier to disclose the assignment.
4. The processing or transformation of the goods by the purchaser is always carried out for the supplier.
If the goods are processed with other items not belonging to the supplier, the supplier shall acquire co-ownership of the new item in the ratio of the value of its own claim to the other processed items at the time of processing. The retention of title shall continue to apply in full to the item created by processing.
The Buyer is authorized to resell the goods subject to retention of title in the course of its business operations.
The Buyer hereby assigns to the Seller its claims arising from the resale of these goods subject to retention of title, irrespective of whether the goods subject to retention of title are resold unprocessed or processed.
5. if the delivered goods are inseparably mixed with other items not belonging to the supplier, the supplier shall in turn acquire ownership of the new item in the ratio of the value of the purchased item to the other mixed items at the time of mixing.
If the mixing takes place in such a way that the purchaser’s item is to be regarded as the main item, the purchaser shall transfer proportionate co-ownership to the supplier; the purchaser shall hold the supplier’s sole or co-ownership in safe custody for the supplier.
6. if the delivered goods or objects or items manufactured from them are resold by the purchaser or installed directly or modified in a property of a third party in such a way that they become essential components of the property of the third party, the claims of the purchaser against his customer or third parties replacing these items shall be transferred to the supplier to secure his claims without the need for a special declaration of assignment.
7. the supplier shall release securities to which it is entitled at the request of the customer to the extent that the realizable value of the securities exceeds the claims to be secured by more than 10%; the supplier shall be responsible for selecting the securities to be released.
XIII Other
- The contract shall remain binding in its remaining parts even if individual provisions are legally ineffective; the ineffective provision shall be replaced by one that comes closest to the economic intention.
- The place of fulfillment and jurisdiction is agreed to be the registered office of the supplier, provided that the purchaser is a merchant within the meaning of the law; however, the supplier is at liberty to file suit at the registered office of the purchaser.
- All agreements between the Supplier and the Customer shall be made in writing; the written form shall also apply to all amendments and/or ancillary agreements before or after conclusion of the contract. In this respect, the written form also applies to a waiver of this written form clause.
- The legal relationships in connection with this contract shall be governed by German substantive law to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
General Terms and Conditions of Purchase of enwitec electronic GmbH
- General – Scope of application
- Our Terms and Conditions of Purchase shall apply exclusively to all orders placed by us, including future orders; we do not recognize any terms and conditions of the supplier that conflict with or deviate from our Terms and Conditions of Purchase unless we have expressly agreed to their validity in writing. Our Terms and Conditions of Purchase shall also apply if we accept the supplier’s delivery without reservation in the knowledge that the supplier’s terms and conditions conflict with or deviate from our Terms and Conditions of Purchase.
- Our Terms and Conditions of Purchase shall only apply to entrepreneurs in accordance with Section 310 (4) BGB.
- Only a written order is binding; orders placed verbally or by telephone require written confirmation to be effective.
- All correspondence relating to the contract must be conducted with us, quoting the order number.
- Acceptance of the offer – Order confirmation – Offer documents
- The supplier is obliged to accept our order within a period of one week, after which we are no longer bound by the order/our offer.
- The declaration of acceptance can also be made by e-mail or fax.
Reference must always be made to the order number in the order confirmation.
- We reserve the property rights and copyrights to illustrations, drawings, calculations and other documents; they may not be made accessible to third parties without our express written consent. They are to be used exclusively for production based on our order; after completion of the order they are to be returned to us unsolicited. They must be kept secret from third parties; in this respect, Section XII.
- The supplier must ensure that our order data is stated on all other documents relating to the order (delivery bill, invoice, etc.).
- The supplier may not make any changes to the order without our written consent; we may change our orders at any time insofar as this is reasonable for the supplier.
- In the event of insolvency, inability to pay, etc. of the supplier, we may withdraw from the contract; in the case of continuing obligations, we may terminate the contract extraordinarily in such cases.
- Prices – Terms of payment
- The price stated in the order shall be binding unless the list price at the time of performance is more favorable for us.
- If it is agreed in the order that price components for raw materials are determined on the basis of commodity indices (e.g. LME market value) during processing as a price escalation clause or material price surcharge or via market-oriented negotiation, then the other price components are considered and negotiated separately from the raw materials.
- Unless otherwise agreed in writing, the price includes delivery “free domicile”, including packaging and customs duties. If the statutory value added tax is not shown separately in the order confirmation or invoice, it is included in the price. We may require the supplier to collect and dispose of the packaging of the purchased goods at his own expense; otherwise the return of the packaging requires special agreement.
- If the supplier is responsible for installation and/or assembly, he shall bear all incidental costs incurred, e.g. travel expenses, provision of tools and personnel etc., subject to written arrangements.
- We can only process invoices if these – in accordance with the specifications in our order – state the order number shown there; the supplier is responsible for all consequences arising from non-compliance with this obligation, unless he can prove that he is not responsible for them.
- Invoices must be submitted separately immediately after delivery of the goods, i.e. not enclosed with the shipment. Packing lists and agreed information and documents must be enclosed with the invoices. Furthermore, the name of our dispatcher must be stated on invoices.
- Unless otherwise agreed in writing, we shall pay the purchase price within 14 days, calculated from delivery and receipt of invoice, less 3% discount, within 30 days less 2% discount or within 60 days net.
- Invoices for partial services shall only be due and paid by us with our prior written consent before execution of the entire order.
- We shall be entitled to set-off and retention rights to the extent permitted by law. We are entitled to reduce invoice amounts by the value of returned goods as well as any expenses and claims for damages.
- The Supplier’s rights of set-off and retention shall only apply insofar as these are undisputed or have been legally established.
- Delivery time
- The delivery time stated in the order, which must be carefully checked by the supplier in advance, is binding.
- The supplier must notify us of the dispatch of the goods (confirmation of dispatch).
- The supplier is obliged to inform us immediately in writing if circumstances arise or become apparent to him which indicate that the agreed delivery time cannot be met.
- In the case of large deliveries, the delivery date must be notified 3 working days in advance. Expenses incurred by the supplier due to the fact that no prior agreement was reached with us shall be borne by the supplier.
Delivery should take place at the following times if possible:
Monday – Thursday 7:00 am – 4:30 pm
Friday 7:00 am – 12:00 pm
Deliveries at other times must be agreed in advance by telephone.
- In the event of a culpable delay in delivery by the supplier, we shall be entitled to demand a contractual penalty of 0.2% of the delivery value for each day of delay or part thereof, but not more than 10% of the delivery value in total. However, the supplier shall not be obliged to compensate our loss of profit unless he has exceeded these delivery dates by more than ten (10) days. We reserve the right to assert other claims. In particular, we shall be entitled to demand compensation in lieu of performance and rescission after the fruitless expiry of a reasonable period. If we demand compensation, the supplier shall be entitled to prove to us that he is not responsible for the breach of duty. The acceptance of a delayed delivery or service does not constitute a waiver of claims for compensation.
- Partial deliveries shall be precisely designated as such; we shall only be obliged to accept partial deliveries if this has been agreed in writing.
- If the delivery is made before the agreed date, we reserve the right not to accept the delivery and to return it at the supplier’s expense and risk.
- In the case of continuing obligations, we may require the supplier to create an inventory stock; the inventory stock comprises at least one monthly order.
- Transfer of risk – Documents – Quality management system
- Unless otherwise agreed in writing, delivery shall be free domicile; the costs for packaging, customs and shipment shall be borne by the supplier.
The risk shall pass to us when the goods are handed over to us at the designated place of use.
- Ownership of the purchased item shall pass to us upon handover to us.
- The supplier is obliged to state our order number exactly on all shipping documents and delivery bills; if he fails to do so, we shall not be responsible for delays in processing.
All documents must be issued in duplicate; the contents of the consignment (number of items, order number, number of containers, etc.) must be precisely described in the delivery bills.
- The supplier is obliged to send us a non-dual-use declaration and a long-term supplier’s declaration in writing for the delivered goods without being requested to do so.
- The supplier maintains a quality management system and provides evidence of its certification in accordance with DIN EN ISO 9001:2015.
Upon request, the supplier shall prove the quality of the products by submitting test certificates.
- The supplier is obliged to provide us with all documents concerning hazardous substances relating to the goods; this includes in particular the declarations of conformity with the RoHs Directive (2011/65/EU) and REACH Regulation (1907/2006/EC).
- Execution of the service
- The supplier guarantees the intended function, design and usability of the ordered items, in particular the fulfillment of prescribed standards for operational safety. The supplier is also obliged to provide the relevant documents with each delivery as proof of testing and approval of the product for use in DC connection technology.
- The supplier undertakes to inform us comprehensively about possible dangers associated with the use of the contractual object. So-called hazardous material sheets are to be supplied without being asked.
- Inspection for defects – Liability for defects
- We are obliged to inspect the goods within a reasonable period of time for any deviations in quality and quantity in accordance with § 377 HGB (German Commercial Code); the complaint shall be deemed to have been made in good time if it is received by the supplier within a period of 7 working days, calculated from receipt of the goods or, in the case of hidden defects, from discovery. Random sampling shall be sufficient.
- If the supplier has fraudulently concealed the defect, it may not invoke the obligation to monitor and give notice of defects pursuant to Section 377 HGB.
- We shall be entitled to the statutory claims for defects in full; in any case, we shall be entitled to demand that the supplier either rectify the defect or deliver a new item, at our discretion. We expressly reserve the right to claim damages, in particular damages in lieu of performance.
- We are entitled to remedy the defect ourselves at the supplier’s expense if there is imminent danger or particular urgency.
- The limitation period is 36 months, calculated from the transfer of risk, unless otherwise agreed or unless the law provides for longer periods.
- Discovery of the defect after processing and delivery
- If a defect in the goods only becomes apparent after processing and delivery to the end customer, we shall be entitled, in addition to the claims under statutory warranty, to take action ourselves at the end customer’s premises and remedy the defect without setting a deadline for subsequent performance/removal of defects.
- If the claimed defect and the resulting costs are based solely on the goods purchased from the supplier, the supplier shall bear not only the costs of any replacement or repair, but also any additional costs for travel, work on site and additional materials.
- If the defect is proportionately caused by the supplier’s goods and the costs incurred as a result, the supplier shall bear our costs in this respect in the same percentage ratio.
- Furthermore, in the event of a serial defect in the goods, we shall be entitled to refuse acceptance of the entire delivery or, if a partial delivery has already been made, of the remaining delivery and to assert the statutory warranty rights for defects for the entire delivery. A serial defect in this sense is assumed if at least 10% of the delivered goods exhibit the same or a similar defect during the warranty period.
- Product liability – Indemnification – Liability insurance cover
- Insofar as the supplier is responsible for product damage, he shall be obliged to indemnify us against claims for damages by third parties upon first request to the extent that the cause lies within his sphere of control and organization and he himself is liable in relation to third parties.
- Within the scope of its liability for cases of damage within the meaning of para. 1, the supplier shall also be obliged to reimburse any expenses pursuant to §§ 683, 670 BGB or pursuant to §§ 830, 840, 426 BGB which arise from or in connection with a recall campaign carried out by us. We shall inform the supplier of the content and scope of the recall measures to be carried out – as far as possible and reasonable – and give him the opportunity to comment. Other statutory claims remain unaffected.
- The supplier undertakes to maintain product liability insurance with a lump sum cover of € 5 million per personal injury/property damage; if we are entitled to further claims for damages, these shall remain unaffected. Higher sums insured can be agreed in individual cases.
- Property rights
- The supplier warrants that no rights of third parties within the Federal Republic of Germany are infringed in connection with his delivery.
- If claims are asserted against us by a third party in this respect, the supplier shall be obliged to indemnify us against these claims upon first written request; we shall not be entitled to enter into any agreements with the third party – without the supplier’s consent – in particular to conclude a settlement.
- The supplier’s obligation to indemnify relates to all expenses necessarily incurred by us from or in connection with the claim by a third party; this also includes the costs of legal representation.
- The supplier must insure itself against these risks to a sufficient extent as is customary in the trade.
- The limitation period is ten years, calculated from the conclusion of the contract.
- Retention of title – Provision – Tools
- If we provide parts to the supplier, we reserve title to these parts. Processing or transformation by the supplier shall be carried out on our behalf. If our reserved goods are processed with other items not belonging to us, we shall acquire co-ownership of the new item in the ratio of the value of our item (purchase price plus VAT) to the other processed items at the time of processing.
- If the item provided by us is inseparably mixed with other items not belonging to us, we shall acquire co-ownership of the new item in the ratio of the value of the reserved item (purchase price plus VAT) to the other mixed items at the time of mixing. If the mixing takes place in such a way that the supplier’s item is to be regarded as the main item, it is agreed that the supplier shall transfer co-ownership to us on a pro rata basis; the supplier shall keep the sole ownership or co-ownership for himself.
- Insofar as the security interests to which we are entitled in accordance with para. 1 and/or para. 2 exceed the purchase price of all our reserved goods not yet paid for by more than 10%, we are obliged to release the security interests at our discretion at the supplier’s request.
- Secrecy
- The supplier is obliged to keep all illustrations, drawings, calculations and other documents and information received strictly confidential. They may only be disclosed to third parties with our express consent. The confidentiality obligation shall also apply after the completion of this contract; it shall expire if and insofar as the manufacturing knowledge contained in the illustrations, drawings, calculations and other documents provided has become generally known.
- Third parties used by the supplier to fulfill contractual obligations must be obligated accordingly. In the event of a breach of this obligation, we may demand immediate surrender and claim damages.
- Miscellaneous
- If the supplier is a merchant, our registered office shall be the place of jurisdiction; however, we shall also be entitled to sue the supplier at the court of its registered office.
- Unless otherwise agreed, the place of performance for the delivery shall be our registered office.
- The contract shall remain effective in its remaining parts even if individual provisions are legally ineffective; the ineffective provision shall be replaced by one that comes closest to the economic intent.
- All agreements between the supplier and us must be made in writing; the written form also applies to all amendments and/or ancillary agreements before or after conclusion of the contract. The written form shall also apply to any waiver of this written form clause.
- The contract shall be governed exclusively by German law to the exclusion of the CISG.
General Terms and Conditions of enwitec GmbH for repair/service activities
I.
- Scope of application
The General Terms and Conditions apply to repair and service activities of the contractor, enwitec electronic GmbH, both for repairs and service for systems and devices supplied by the company itself and for repairs of systems and devices supplied to the client by third parties.
In the following, only the term repair is used; all conditions also apply to pure services without repair work.
- Conclusion of contract
- The content of the contract and the scope of the repairs to be carried out shall be determined exclusively by the Contractor’s written order confirmation.
- If there is an uncontradicted written order confirmation, this shall be decisive for the content of the contract and the scope of the repair.
- If the item to be repaired is not supplied by the Contractor, the Customer shall draw attention to any existing industrial property rights in respect of the item; provided the Contractor is not at fault, the Customer shall indemnify the Contractor against any third-party claims arising from industrial property rights.
- Repair not feasible
- The services rendered for the submission of a cost estimate as well as the further expenses incurred and to be documented (troubleshooting time equals working time) shall be invoiced to the customer if the repair cannot be carried out for reasons for which the contractor is not responsible, in particular because
- the fault in question did not occur during the inspection,
- spare parts cannot be procured,
- the customer has culpably missed the agreed deadline,
- the contract has been terminated during implementation.
- The item to be repaired need only be returned to its original condition at the express request of the customer against reimbursement of the costs, unless the work carried out was not necessary.
- If the repair cannot be carried out, the Contractor shall not be liable for damage to the item to be repaired, the breach of secondary contractual obligations and for damage that has not occurred to the item to be repaired itself, irrespective of the legal grounds invoked by the Customer. However, the Contractor shall be liable in the event of intent, gross negligence on the part of the owner/the executive bodies or senior employees, as well as in the event of culpable breach of material contractual obligations. In the event of culpable breach of material contractual obligations, the Contractor shall only be liable – except in cases of intent and gross negligence on the part of the owner/the executive bodies or executive employees – for reasonably foreseeable damage typical of the contract.
- Cooperation and technical assistance by the customer in the event of repairs outside the contractor’s factory
- The customer must support the repair personnel in carrying out the repair at his own expense.
- The customer must take the special measures necessary to protect persons and property at the repair site. He shall also inform the repair manager about existing special safety regulations, insofar as these are of importance for the repair personnel. He shall inform the contractor of any breaches of such safety regulations by the repair personnel. In the event of serious violations, he may, in consultation with the repair manager, deny the violator access to the repair site.
- The customer is obliged to provide technical assistance at his own expense, in particular to:
- Provision of the necessary suitable assistants in the number required for the repair and for the time required; the assistants must follow the instructions of the repair manager. The Contractor shall not assume any liability for the assistants. If a defect or damage is caused by the assistants due to the instructions of the repair manager, the provisions of Sections X and XI shall apply accordingly.
- Carrying out all construction, bedding and scaffolding work, including procurement of the necessary building materials.
- Provision of the necessary equipment and heavy tools as well as the required commodities and materials.
- Provision of heating, lighting, operating power, water, including the necessary connections.
- Provision of necessary, dry and lockable rooms for the storage of the repair personnel’s tools.
- Protect the repair site and materials from damaging influences of any kind; clean the repair site.
- Provision of suitable, theft-proof recreation and work rooms (with heating, lighting, washing facilities, sanitary facilities) and first aid for repair personnel.
- Provision of the materials and performance of all other actions necessary to adjust the repair item and to carry out a contractually agreed test.
- The Customer’s technical assistance must ensure that the repair can be started immediately after the arrival of the repair personnel and can be carried out without delay until acceptance by the Customer. If special plans or instructions from the contractor are required, the contractor shall make them available to the customer in good time.
- If the Customer fails to meet its obligations, the Contractor shall be entitled, but not obliged, to perform the actions incumbent on the Customer in its place and at its expense after setting a deadline. Otherwise, the statutory rights and claims of the Contractor shall remain unaffected.
- Repair deadline, repair delay
- The information on repair times is based on estimates and is therefore not binding.
- The customer may only demand the agreement of a binding repair deadline, which must be designated as binding, once the scope of the work has been precisely determined.
- The binding repair deadline shall be deemed to have been met if the item to be repaired is ready for acceptance by the customer by the time it expires or, in the case of a contractually agreed test, is ready for testing.
- If additional and extension orders are placed at a later date or if additional repair work is necessary, the agreed repair period shall be extended accordingly.
- The Contractor may – without prejudice to its rights arising from the Client’s default – demand an extension of the deadline from the Client if the Client fails to fulfill its contractual obligations towards the Contractor, in particular those arising from IV. of these General Terms and Conditions of Repair and Service.
- The Contractor shall not be liable for impossibility of performance or for delays in performance insofar as these are caused by force majeure or other events unforeseeable at the time of performance (e.g. operational disruptions of any kind, difficulties in procuring materials or energy, transport delays, strikes, lawful lockouts, shortages of labor, energy or raw materials, difficulties in obtaining necessary official permits, official measures, travel warnings or the lack of, incorrect or untimely delivery by suppliers, pandemics, epidemics, epidemics, official measures and orders such as quarantine orders) for which the Contractor is not responsible. If such events make it significantly more difficult or impossible for the Contractor to provide the service and the hindrance is not only of a temporary nature, the Contractor shall be entitled to withdraw from the contract. In the event of hindrances of a temporary duration, the performance deadlines shall be extended or the performance dates postponed by the period of the hindrance plus a reasonable start-up period. Any agreed contractual penalty shall be suspended for this period.
- Acceptance
- The customer is obliged to accept the repair work as soon as he has been notified of its completion and any contractually agreed testing of the item to be repaired has taken place. If the repair proves not to be in accordance with the contract, the Contractor shall be obliged to rectify the defect. This shall not apply if the defect is insignificant for the interests of the customer or is based on a circumstance attributable to the customer. If there is an insignificant defect, the customer may not refuse acceptance.
- If the customer has been requested by the service personnel to accept the goods and has nevertheless failed to do so in the presence of the service personnel, the customer shall bear any additional expenses for a return journey for the purpose of rectifying the defect. This does not apply if the customer can prove that he was not yet obliged to accept the goods or that immediate acceptance was unreasonable for him.
- If acceptance is delayed through no fault of the Contractor, acceptance shall be deemed to have taken place two weeks after notification of completion of the repair.
- The Contractor’s liability for recognizable defects shall lapse upon acceptance, unless the Customer has reserved the right to assert a specific defect.
- Retention of title, extended lien
- The Contractor shall retain title to all accessories, spare parts and replacement units used until all payments under the repair contract have been received. Further security agreements can be made.
- The contractor is entitled to a lien on the customer’s repair item that has come into his possession on the basis of the contract due to his claim arising from the repair contract. The right of lien may also be asserted for claims arising from work carried out earlier, deliveries of spare parts and other services, insofar as they are connected with the item to be repaired. The right of lien shall only apply to other claims arising from the business relationship insofar as these are undisputed or legally binding.
- Retention and offsetting
Offsetting against the purchase price with counterclaims of the client is only permitted with undisputed or legally established claims.
The customer is only authorized to exercise a right of retention to the extent that his counterclaim is based on the same contractual relationship.
- Exclusion of warranty
- The Contractor shall have no warranty obligation if the defect is insignificant for the Customer’s interests or is based on a circumstance attributable to the Customer. This applies in particular to parts provided by the Customer.
- In the event of improper modifications or repair work carried out by the Customer or third parties without the Contractor’s prior consent, the Contractor shall not be liable for the resulting consequences. Only in urgent cases of danger to operational safety and to prevent disproportionately large damage, in which case the Contractor must be notified immediately, or if the Contractor – taking into account the statutory exceptions – has allowed a reasonable deadline set for it to remedy the defect to expire without success, shall the Customer have the right, within the framework of the statutory provisions, to remedy the defect itself or have it remedied by third parties and to demand reimbursement of the necessary costs from the Contractor.
- Liability of the contractor, exclusion of liability
- If parts of the item to be repaired are damaged through the fault of the Contractor, the Contractor shall, at its discretion, repair or replace them at its own expense. The obligation to pay compensation shall be limited to the contractual repair price. Otherwise, IX.
- For damage that has not occurred to the object of repair itself, the Contractor shall only be liable – for whatever legal reasons
- with intent,
- in the event of gross negligence on the part of the owner/the executive bodies or senior employees,
- in the event of culpable injury to life, limb or health,
- in the case of defects which he has fraudulently concealed,
- as part of a guarantee commitment,
- insofar as liability exists under the Product Liability Act for personal injury or property damage to privately used objects.
- In the event of culpable breach of material contractual obligations, the Contractor shall also be liable for gross negligence on the part of non-executive employees and for slight negligence, in the latter case limited to reasonably foreseeable damage typical of the contract. Further claims are excluded.
- Statute of limitations
All claims of the customer – on whatever legal grounds – shall lapse after 12 months. The statutory periods shall apply to claims for damages in accordance with Section IV. 3 a-d and f. If the Contractor carries out repair work on a building and thereby causes it to be defective, the statutory periods shall also apply.
- Applicable law, place of jurisdiction
- All legal relationships between the Contractor and the Customer shall be governed exclusively by the law of the Federal Republic of Germany applicable to legal relationships between domestic parties.
- The place of jurisdiction is the court responsible for the Contractor’s registered office. However, the Contractor shall be entitled to bring an action at the Customer’s head office.
- All agreements between the Contractor and the Customer must be made in writing; the written form also applies to all amendments and/or ancillary agreements before or after conclusion of the contract. In this respect, the written form also applies to a waiver of this written form clause.
- The contract shall remain valid even if individual provisions are invalid; the invalid provision shall be replaced by a provision that comes as close as possible to the economic intent of the invalid provision.
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