I. Validity

The supplier’s offers, acceptance of orders and all supplies will only take place on the basis of the following “General Terms and Conditions of Sale and Supply”.
The buyer’s terms and conditions of purchase are hereby expressly excluded and shall not be binding on the supplier even if not expressly excluded when the contract is formed.
Any other terms and conditions shall only be valid if the supplier expressly agrees to the validity of the buyer’s terms and conditions.

II. Offer; formation of contract

1.   The supplier’s offers shall be made subject to change and the supplier’s written confirmation unless expressly agreed otherwise in writing. The acceptance of orders received from salesmen or representatives is reserved, and the supplier’s written confirmation is also required.
Any documents belonging to an offer such as drawings, designs or weight specifications and other descriptions are only approximate and provide a rough description and definition of the delivery items. The same applies to the performance and consumption data.
This data represents no guarantee of the character or durability of the delivery items. The supplier reserves the right to alter the dimensions and weight of the items until they are delivered.

2.   The supplier shall retain the right of ownership and copyrights of all drawings, designs, calculations and other documents including brochures and catalogues.
Any use not covered by this Agreement or any disclosure to third parties must be expressly authorised by the supplier in writing.

III. Prices; payment

1.   The prices are stated exclusive of packaging, freight and insurance, ex-works, and do not cover re-orders.
The costs of packaging will be charged separately, transport and insurance will be charged when incurred and upon agreement.
Framework agreements will not be affected by these provisions and the respective terms and conditions will be agreed separately.

2.   The prices are based on the actual costs up until the time of the supplier’s written confirmation. If these actual costs increase before the delivery date due to increases in taxes, the prices of raw materials, supplies, energy, transport costs or wages, the supplier is entitled to adjust the agreed price accordingly.
Such price increases shall not give the buyer the right to withdraw from the contract.

3.   If the agreed delivery date is more than four months after the contract is formed or if the supply takes place more than four months after the contract is formed for reasons attributable to the buyer, the supplier is entitled to charge the price which is valid on the date the supply is made.

4.   The agreed delivery price plus statutory VAT shall become due and payable on receipt of the invoice, without prejudice to any other agreement. Payments to the supplier’s salesmen or representatives are not permitted, without a written authority for collection.
If several invoices are outstanding, payments will first be allocated to the oldest claims and if costs and interest have accrued, payments will first be allocated to the costs then to the interest and finally to the main service, and in turn to the oldest invoices.

5.   Retentions or offsetting against the purchase price will only be permitted with in the case of unchallenged or legally-binding claims.
The buyer may only exercise its right of retention if its counterclaim relates to the same contract.

IV. Default

1.   If the payment deadline is exceeded or in the event of subsequent delay, legal interest will be charged.

2.   If the buyer fails to honour a cheque or if the supplier becomes aware of a significant worsening in the buyer’s circumstances which jeopardises its ability to pay, the total remaining debt outstanding will become due.
If the total remaining debt is not paid immediately, the buyer shall lose its right to use the delivery items.
The supplier is entitled either to have the delivery items returned to it, without prejudice to its claims, or to withdraw from the contract.
If such circumstances are known after formation of the contract but before the supply is made, the supplier may refuse to supply the goods and request that payment and delivery be reciprocal and simultaneous even if other payment terms and deadlines have been agreed. Alternatively, the supplier may request a guarantee.

3.   If the buyer fails to fulfil its payment obligations even after having been served with a notice to pay within an appropriate deadline, the supplier may have the delivery items returned, or withdraw from the contract. In the case of a hire purchase business, the supplier may withdraw from the contract on account of the buyer’s delay in paying, under the terms and conditions provided for by law.

4.   If the supplier withdraws from the contract, the supplier is also entitled to claim compensation in lieu of performance or the reimbursement of any expenditure made in vain, if it has first given the buyer notice to perform with an appropriate deadline, to no avail.
If the supplier has demanded compensation in lieu of performance, it may charge 25 % of the agreed purchase price, with no deductions, as the amount of compensation.
The supplier is free to prove and claim further losses and the buyer is also free to prove that a loss has not arisen or that it is significantly lower than the sum demanded.
This shall also apply if the buyer not only defaults in respect of payment but also in respect of accepting the goods or any other obligation to cooperate.

5.   If the withdrawal takes place after the goods are delivered, the supplier not only has the right to the return of the goods but may also claim compensation for making the goods available for use. This claim shall take effect independently of claims for compensation and reimbursement of expenditure made in vain.

6.   All the above provisions shall also apply in the case of direct delivery to the end customer at the behest of the buyer.

V. Delivery period

Delivery, the delivery period or collection by the buyer will be agreed separately.
The delivery period shall begin on the day on which the order confirmation is sent and shall be deemed to have been complied with if the goods have left the factory at the end of the delivery period.
The delivery period will be extended accordingly in the case of industrial action, in particular strikes or lock-outs, or in the event of unforeseen circumstances beyond the supplier’s control such as disruptions to operations, shortages of raw materials or traffic disruptions etc., provided that it can be proven that such events have a significant influence on the production or delivery of the goods to be supplied.
This shall also apply if the events affect sub-suppliers or subcontractors.

The aforementioned circumstances shall not be attributed to the supplier if they occur during an existing period of delay.
Compliance with the delivery period requires the buyer’s compliance with the contractual conditions, and in particular the procurement of any permits or licences required from the authorities.
Otherwise the delivery period and delivery date shall be extended accordingly.

VI. Shipping

All shipments shall be made according to the supplier’s best judgement, at the buyer’s expense.
The supplier reserves the right to choose the method of shipment, and no claims may be made against the supplier on the grounds of the chosen method.

VII. Shipment abroad

Shipments abroad are also subject to the additional terms and conditions of export and any other specific agreements.
It is also agreed that Incoterms 2010 shall apply, upon which the supplier may rely.

VIII. Transfer of risk; acceptance

The risk is transferred to the buyer upon delivery of the goods to the carrier, regardless of whether the supplier or the buyer commissioned the carrier, even in the case of partial deliveries or if the supplier still has other services to perform, without prejudice to any other agreements.

In the event of a delay to the shipment which may take place by rail or freight at the supplier’s discretion, caused by circumstances attributable to the buyer, the risk shall be transferred to the buyer from the date on which the goods were prepared for shipment; however the supplier must take out any insurance requested by the buyer, at the expense of the latter. The delivered goods must be accepted by the buyer even if they display minor defects, without prejudice to the rights under clause 9.
Partial deliveries are permitted to the extent that this is reasonable for the buyer.

IX. Warranty

If the delivery has deficiencies, these deficiencies shall, at the discretion of the Supplier, either be remedied or the defective parts replaced by the delivery of new goods free of defects, whereby the goods replaced shall become property of the Supplier.

Of the direct costs arising from subsequent improvements and/or replacement deliveries, the Supplier – provided the complaint is deemed to be justified – shall bear the costs of the replacement part. Repair of defective goods shall be performed on the manufacturer’s premises. Expenses incurred for the disassembly and reassembly, transportation, packaging etc. shall be borne by the Purchaser.

Manufacturer’s warranties passed on within the scope of the delivery such as conformity and/or clearance certificates of the manufacturer shall not represent any warranty of the Supplier nor any contractual agreement of the Supplier on quality.

In case of transactions in which no consumer is involved, the Supplier shall not assume any responsibility for product components which have been provided by the Purchaser.

X. Limitation period

Warranty claims shall expire after two years from delivery of the goods.
The legal period shall however be the longer period specified under sections 478 and 479 of the German Civil Code , in respect of material defects in buildings and building components, retrospective claims of the buyer or construction.

The legal limitation period shall also apply in cases of death or injury to body or health, in the event of gross negligence or wilful misconduct by the supplier or fraudulent concealing of defects.

XI. Liability for compensation

1.   The supplier shall be liable to pay compensation in accordance with the law if the customer enforces claims based on fraud or gross negligence including the fraud or gross negligence of its representatives or servants.
If the supplier is not accused of any intentional breach of contract the liability to pay compensation will be limited to typical and foreseeable damages.

2.   The supplier shall be liable by law if it is guilty of a material breach of contract. In such a case, the compensation for damages will be limited to typical and foreseeable damages.

3.   Liability due to death, culpable bodily injury or injury to health shall remain. This shall also apply in the case of mandatory liability under the Product Liability Act.

4.   Liability is excluded except where governed by the foregoing.

XII. Reservation of title

1.   The supplier shall retain title to the goods until receipt of all payments under the contract.
The buyer must handle the goods carefully, and in particular must insure them at its own expense against fire, water and theft up to the replacement value.
Any maintenance and inspection works must be carried out by the buyer at its own expense, promptly and diligently.

2.   The buyer must report to the supplier promptly and in writing in respect of any seizure, confiscation or other third party access to the goods, so that the supplier can exercise its rights as holder of title to the goods.
If this provision is violated the buyer shall be liable for any corresponding loss of the supplier.

3.   The buyer may dispose of the goods during the normal course of business, however it hereby assigns to the supplier all receivables in the amount of the gross sale price of the supplier’s account to which it may be entitled as a result of the resale.
The above is irrespective of whether the goods are re-sold before or after conversion.
The customer is entitled to collect receivables even after assignment, subject to the supplier’s authority to disclose the assignment of receivables and collect the receivables itself.
This shall remain provided that the buyer fulfils its payment obligations, does not fall into arrears and no petition for winding-up or insolvency proceedings is submitted.
In such a case the buyer must immediately provide the supplier with all the required information about its customers together with the necessary documents and allow the supplier to disclose the assignment.

4.   The conversion or alteration of the goods by the buyer will always be conducted for the supplier.
If the goods are converted with other items not belonging to the supplier, the latter shall hold joint ownership of the new items to the extent of the value of its own claim on the other items converted up to the date of the conversion.
The retention of title shall continue to apply entirely to the items created through conversion.
The buyer is authorised to re-sell the goods subject to retention of title during the course of its business operations.
The customer hereby assigns its claims to re-sale of the goods subject to retention of title to the retailer, regardless of whether said goods are re-sold without conversion or after conversion.

5.   If the delivered goods are inseparably mixed with other items not belonging to the supplier, the latter shall hold joint ownership of the new items in proportion to the value of the sale item to the other items included up to the date of the conversion.
If the items are mixed in such a way that the items of the buyer is considered the main item, then the buyer shall confer to the supplier a proportional share of joint ownership and the buyer shall hold the sole or joint ownership of the supplier on its behalf.

6.   If the delivered goods or items or objects manufactured as a consequence are further disposed of, converted directly or converted on a site belonging to a third party, in such a way that they become a material part of the third party site, the buyer’s claims in lieu of these items against its customer or third party shall pass to the supplier as security, without the need for the latter to give a specific notice of assignment.

7.   The supplier shall release the securities owing at the request of the buyer provided that the realisable value of the securities exceeds the claims to be secured by more than 10%, and the choice of which securities to be released is the responsibility of the supplier.

XIII. Miscellaneous

1.   If even part of this Agreement is found to be unenforceable, the remaining provisions shall remain in force. The unenforceable provision shall be replaced with a provision that best reflects the economic intention of the parties.

2.   The place of performance and jurisdiction shall be the place in which the supplier has its head office, to the extent that the buyer is construed as the trader in the sense of the law. The supplier shall however be free to bring an action in the place in which the buyer has its registered office.
All agreements between the supplier and the buyer must be made in writing. The requirement for the written form also applies to any amendments or side letters prior to or following formation of the contract.
The written form requirement also applies to any deletion of this written form clause.

3.   German substantive law shall apply to any legal relationships connected to this Agreement. The UN Convention on Contracts for the International Sale of Goods (CISG) is hereby excluded.

I.          General – Validity

1.   Our purchasing terms and conditions are exclusively valid; adverse or deviating terms and conditions of the supplier shall not be accepted, unless we expressly approved their validity in writing. Our purchasing terms and conditions are also valid if we accept the delivery from the supplier without reservation being aware that the supplier’s purchasing terms and conditions do not conflict with or diverge from our purchasing terms and conditions.

2.   Only a written order is binding; oral orders or orders made by phone require written confirmation to become valid.

3.   Our purchasing terms and conditions are only valid for companies according to s. 310 paragraph 4 German Civil Code.

II. Acceptance of offer – order confirmation – offer

1.   The supplier is obliged to accept our order within a period of 1 week, afterwards the order or our offer will no longer be binding for us.

2.   The declaration of acceptance can also be made by e-mail or fax. The order number shall always be indicated on the order confirmation as well as on every further correspondence.

3.   For pictures, drawings, calculations and any other document we reserve our property rights and copyrights. They are not allowed to be disclosed to third parties without our explicit written consent. They shall be used exclusively for the production due to our order. Upon termination of the order, they shall be returned unsolicitedly to us. They shall be kept strictly confidential towards third parties; in this context, the rules set out in s. 12 are additionally valid.

III. Prices and terms of payment

1.   The price indicated on the order is binding. Unless otherwise agreed in writing, the price includes delivery ‘free domicile’ including packing. The return of packing shall be agreed separately.

2.   According to the stipulations made in our order, we can only take into consideration invoices indicating the order number shown on our order. The supplier shall be responsible for any consequence arising from the breach of this obligation unless it is able to prove that they are beyond his responsibility.

3.   Unless otherwise agreed in writing, we pay the purchase price within 14 days upon delivery and receipt of invoice subject to 2 % cash discount or within 30 days upon receipt of invoice net.

4.   We reserve the legal rights of set-off and retention.

5.   We only accept partial invoices to fall due and to be paid before execution of the complete order upon prior written consent.

IV. Term of delivery

1.   The term of delivery indicated on the order is binding.

2.   If circumstances occur or become recognisable that provoke the non-observance of the agreed delivery time, the supplier is obliged to inform us immediately in writing.

3.   In case of large deliveries, the date of delivery has to be announced 3 working days before delivery. The supplier is obliged to pay on its own account any of its expenses resulting from the fact that no previous agreement has been made with us.

The delivery has to take place from:
Monday – Thursday 07:00 a.m. – 04:30 p.m.
Friday 07:00 a.m. – 12:00
Deliveries at different times shall previously be agreed by phone.

4.   In case of delivery delay, we reserve the right to legal claims. Upon fruitless expiration of a time limit, we are particularly entitled to claim for damages instead of performance and rescission. If we claim for damages, the supplier has the right to prove that the breach of obligation has been beyond its responsibility.

5.   Partial delivery has to be marked exactly. We are only obliged to accept partial deliveries upon written agreement.

V. Transfer of risks – documents – Quality Management System

1.   Unless otherwise agreed in writing, the delivery shall be made free domicile. The costs for packing and shipment are paid in principal by the supplier. The risk is transferred with delivery to the indicated location.

2.   The supplier is obliged to indicate exactly our order number on the shipping documents and the delivery note. If the supplier fails to this we cannot held to be responsible for delays in processing. Any documents have to be made in duplicate. The content of shipment (number of pieces, order number, number of units, etc.) shall be indicated exactly .

3.   The supplier is obliged to send us in writing without special request a non-dual-use declaration and a long-term supplier declaration regarding the delivered goods.

4.   The supplier maintains a quality management system and verify the certification according to DIN EN ISO 9001:2000.

On request, the supplier detect the quality of products by presenting certificates.

VI. Performance

1.   The supplier guarantees that the function, execution and usage of the ordered goods correspond to the terms of the contract, in particular assuring the compliance with the prescribed standards for operational safety.
The supplier is obliged to transmit with every delivery the corresponding documents proving the testing and certification of the products for being used in the field of DC connection technology.

2.   The supplier undertakes to inform us comprehensively about the risks resulting from the use of the ordered goods. The description of hazardous substances shall be transmitted voluntarily at the same time.

VII. Defects – liability for defects

1.   We are obliged to check the goods within an adequate time for possible deviations of quality and quantity. Defects shall be deemed notified in time, if such notification has been sent to the supplier within 5 working days from the delivery of the goods. In case of hidden defects, the period of notification shall commence upon detection of the defect. Drawing samples are sufficient.

2.   We are entitled to warranty claims to the full extent as legally stipulated. In any case we have the right to demand from the supplier at our own option the remedy of the defect or the delivery of new goods free from defect. We expressly reserve the right to claim for damages, in particular the right to claim damages instead of performance shall expressly be reserved.

3.   In urgent cases and in case of danger in delay, we are entitled to remedy a defect by ourselves at the supplier’s expense.

4.   The period of limitation is 36 months from the date of the risk transfer.

VIII. Detection of a defect upon processing and delivery

1.   If a defect is only detected upon processing and delivery to the end customer, we are entitled to become active in favour of the end customer and to remedy the defect in addition to the claims resulting from the implied warranty and even without fixing a deadline for our claims of subsequent performance or rectification of the defect.

2.   If the claimed defect and the resulting costs only affect the goods delivered by the supplier, the supplier shall pay the costs arising from the probable change or the repair as well as call-out charges, costs for working activities on site and additional material.

3.   If the defect and the arising costs are partially caused by the goods of the supplier, the supplier shall pay these costs at the same percentage rate.

IX. Product liability – release – liability insurance

1.   As far as the supplier is responsible for defects in the products, the supplier shall release us on our first demand from any third-party damage claims, if the cause for the defect falls within the supplier’s sphere of authority and influence and if the supplier is personally liable against third parties. Regarding the supplier’s liability for damages corresponding to paragraph (1), the supplier is also obliged according to s. 683, 670 or s. 830, 840, 426 German Civil Code to reimburse possible expenses arising from or in connection with a product recall made by us. If possible and reasonable, we shall notify the supplier of the content and the volume of the required product recall and give the supplier the opportunity to make a statement. Other legal claims shall remain unaffected.

2.   The supplier undertakes to maintain in general a product liability insurance covering damages of person and property up to a limit of 3 million €. If we are entitled to claims for damages in excess thereof, these shall remain unaffected. Excess cover can be agreed on a case-by-case basis.

X. Property rights

1.   The supplier guarantees that no rights of third parties in the Federal Republic of Germany are infringed in connection with the delivery.

2.   If third parties raise claims against us for reason of infringement, the supplier is obliged to indemnify us from and against these claims upon our first written request. We are not entitled to conclude any agreement or in particular to come to a compromise with such third party without the supplier’s consent.

3.   The supplier’s indemnification obligation includes any expenses arising necessarily to us from or in connection with third party claims.

4.   The limitation period is ten years, starting from the date of the conclusion of contract.

XI. Reservation of title – provision – tools – non-disclosure

1.   If we provide parts to the supplier, we shall reserve title of such parts. Processing or transformation by the supplier is made for us. If the reserved goods are processed together with other goods not owned by us, we shall have a property share in the new goods in proportion of the value of the reserved goods (purchase price plus VAT) to the value of the other processed goods at the time of processing.

2.   Should the supplier combine the reserved goods inseparably with goods not owned by us, we shall have a property share in the new goods in proportion of the value of the reserved goods (purchase price plus VAT) to the value of the other combined goods at the time of combination. If the combination is made in such a manner that the supplier has the main property share in the new goods, it shall be agreed that the supplier assigns to us the proportionate share in the property. The supplier keeps the sole or the joint ownership in custody.

3.   If we are entitled to security rights according to paragraph (1) and/or paragraph (2) which exceed the purchase price of the reserved goods not yet paid by more than 10 %, we are obliged to release the security rights at our own option upon demand of the supplier.

XII. Non-disclosure

The supplier is obliged to keep strictly confidential any received depictions, drawings, calculations and any other documents. They shall only be disclosed to third parties upon our explicit consent. The non-disclosure obligation shall still remain in force upon termination of the present contract. It expires if and to the extent to which the know-how included in the received depictions, drawings, calculations and other documents has become generally available to the public.

XIII. Miscellaneous

1.   If the supplier is a merchant, the courts at our place of business shall have jurisdiction. However, we are also entitled to sue the supplier before the courts having jurisdiction at his place of residence.

2.   Unless otherwise agreed in the order, the place of delivery shall be the place of business or the point of use indicated in the order.

3.   If individual provisions of the contract are or become legally invalid, the validity of the remaining provisions shall not be affected. The invalid provision will be replaced by a provision that comes as close as possible to the economic intent of the invalid provision.

4.   Any agreement between the supplier and customer shall be made in writing. The same applies to any amendments and/or subsidiary agreements made before or upon conclusion of the contract. The waiver of written form shall also be made in writing.

5.   The contract is exclusively subject to German law excluding the international sales law CISG.

I. Area of application

The general terms and conditions apply to repair and other services of the contractor Enwitec electronic GmbH & Co.KGregarding repair and services for plants delivered from Enwitec electronic GmbH & Co.KGitself as well as for plants and equipments delivered to the principal by third parties. In the following only the word repair is used, however, any term and condition also applies to pure services without any repair.

II. Conclusion of contract

1.   The written order confirmation of the contractor is exclusively decisive for the subject matter of the contract and the volume of the repair to be executed.

2.   When an irrevocable written confirmation of order is issued by the contractor, then such is to be deemed determinative for the content of the contract and the extent of the repair work.

3.   When the subject matter of repair has not been supplied by the contractor, the customer shall advise the contractor of any industrial property rights concerning the subject matter. As far as the contractor is not at fault, the customer shall indemnify the contractor from and against any third party claims which are raised due to industrial property rights.

III. Repair work incapable of being successfully completed

1.   Any services provided to the customer by the contractor to enable a quotation to be made as well as any further evidenced expenditure of the contractor incurred (fault investigation are to be deemed work-time) shall be invoiced to the customer by the contractor, when the repair works are incapable of being successfully completed for which the contractor cannot be held responsible, in particular by reason of:

§ the fault complained of not occurring during the inspection work:

§ the necessary spare parts not being available:

§ the customer failing to keep the agreed date for the repair work;

§ the contract being terminated during the course of the repair work

2.   The subject matter of the repair works need only be reinstated to its original condition on the express request of the customer against payment of the charges therefore, unless the repair work carried out were found not to be actually necessary.

3.   In cases of repairs not capable of being carried out, the contractor shall not be legally liable for loss or damage to the subject matter of the repairs, the breach of contractual secondary obligations and for damages not occasioned to the subject matter of the repairs itself, no matter which legal grounds the customer may assert. The foregoing exclusion of legal liabilities shall however not apply to premeditation, gross negligence of the proprietor or managing employee of the contractor or in cases of any culpable infringement of essential contractual duties. As regards any culpable infringement of contractual duties, the contractor shall only be legally liable for typically contractual, reasonably foreseeable loss or damage, except in cases of the premeditation or gross negligence of the proprietor or the managing employee of the contractor.

IV. Collaboration and technical assistance on the part of the customer for repairs undertaken outside of the works of the contractor

1.   The customer shall provide assistance to the repair work technicians in the carrying out of the repair works, at its own costs.

2.   The customer shall undertake all special measures at the repairs’ workplace necessary for the protection of persons and property. The customer shall also inform the repair works’ foreman of any already existent special safety regulations at the repairs’ workplace, insofar as such are of significance for the repair technicians. The customer shall notify the contractor of any infringements of such safety regulations occasioned by the repair technicians. In cases of serious infringements of such, the customer is entitled to refuse any infringing person’s access to the repairs’ workplace after consulting the repair works’ foreman.

3.   The customer is obliged to provide technical assistance at its own cost and in particular:

a. to make available necessary assisting workforce members in a number and for a time period appropriate to the extent of the repair works; such assisting workforce members shall follow the instructions given by the repair works’ foreman. The contractor can accept no legal liability for the assisting workforce members. Should any defects, loss or damage be occasioned by such assisting workforce members working under the instructions of the repair works’ foreman, then the stipulations of Section X. and XI. of the present terms and conditions are to apply;

b.to carry out any construction works, foundation works and scaffolding works including the provision of any construction material;

c. to make available any necessary devices and heavy tools as well as any necessary goods and materials;

d.to make available heating, illumination, electric power and water, including the necessary connections;

e. to make available the necessary, dry and locked room space for the storage of the tools of the repair technicians;

f. to protect the repairs’ workplace and materials from detrimental influences of whatsoever nature, cleaning of the repairs’ workplace;

g.to make available of suitable, theft-proof room space for resting and working (incl. heating, illumination, washing facilities, sanitary installations, etc.) as well as first aid facilities for the repair works’ technicians;

h.to make available materials and to undertake any other matters being necessary for the regulatory adjustment and for the contractually foreseen testing of the subject matter of the repairs.

4.   The technical assistance provided by the customer shall ensure that the repair works can be commenced immediately upon arrival of the repair work technicians at the repairs’ workplace and that the repairs can be carried out without delay up to the point in time of acceptance by the customer. Should any special plans or instructions become necessary, the contractor shall make them available to the customer in due time.

5.   Should the customer fail to attend to its contractual duties, the contractor shall be entitled hereunder, but not committed in this respect so to do, to undertake the foregoing matters in lieu of the customer and for its account after having set the customer a time period of notice to comply. In all other respects however, the statutory rights of the contractor and any assertions of claims are to remain unaffected by such unilateral action.

V. Time period for completing repair work / Delay in completing repair work

1.   All indications of time periods for completing the repair works are based on estimates and are therefore non-binding on the contractor.

2.   Any agreement on a binding time period for completing the repair works, which shall be in writing and designated as binding, can only be demanded by the customer when the extent of the repair work can be precisely ascertained.

3.   Any binding time period for the completion of repair works shall be deemed complied with when the subject matter of the repairs is ready for acceptance by the customer or, in the case of contractually agreed trials, is ready for the undertaking of such testing.

4.   The time period for the completion of repair works can be appropriately extended to include any subsequently placed additional orders or extension orders or in cases of any necessary additional repair work.

5.   Should the completion of the repair works be in delay as a result of measures to combat industrial action, in the particular cases of strikes and lockouts or as a result of the occurrence of circumstances for which the contractor cannot be held responsible, then an appropriate extension of the time period for the completion of the repair works will be made, in so far as it can be evidenced that the hindrances had considerable influence on the completion of the repair work

VI. Acceptance

1.   The customer shall be obliged to accept the repair work as soon as notice is given of its completion and any contractually agreed trials of the subject matter of the repairs have been undertaken. If it should turn out that the repairs are not in conformity with the contract, then the contractor shall be obliged to rectify any defects. Such will however not apply if the defects are essentially unimportant for the benefit of the customer or if such can be attributed to circumstances for which the customer is responsible. When defects can be deemed unessential, then the customer shall not be entitled to refuse acceptance.

2.   Should acceptance by the customer be in delay without any culpability on the part of the contractor, then acceptance will be deemed as executed after two weeks of the issuing of the notice of completion of the repairs.

3.   Acceptance by the customer will release the contractor from liability for recognisable defects unless the customer has reserved the right subsequently to assert a complaint for a certain defect.

VII. Reservation of proprietorship rights and extended mortgage rights

1.   The contractor reserves its proprietorship rights in all accessories, replacement parts employed for the repair work as well as in any equipment provided in exchange, up to receipt of all payment settlements under the repair contract. Additional extended securing agreements can also be concluded.

2.   The contractor is also entitled to exercise its mortgage rights over the subject matter of the repairs coming into its possession under the repairs’ contract. Mortgage rights can also be asserted over the subject matter of the repairs for financial claims in respect of any earlier completed repair work, supplies of replacement parts and other services, provided that such are in connection with the subject matter of repair. In respect of any other claims emanating from the business relationship, mortgage rights shall only be capable of assertion in so far as such are undisputed or legally enforceable.

VIII. Rights of retention and set-off

The customer shall only be entitled to set off its counterclaims against the purchase price, if such claims are undisputed or legally enforceable. The customer shall only be entitled to exercise the right of retention, in so far as its counterclaim is based on the same contract.

IX. Exclusion of warranty

1.   The contractor shall not furnish any warranty if the defects are essentially unimportant for the benefit of the customer or if such can be attributed to circumstances for which the customer is responsible. The foregoing expressly applies to parts provided by the customer.

2.   In cases of improper changes or maintenance works carried out by the customer without prior consent of the contractor, the contractor’s liability for the occurring consequence shall be abrogated. Only in urgent cases of threat to operational safety and defence against damages out of scale of which the contractor is to be informed immediately or – taken into consideration the legal exceptions -if the contractor did not meet an appropriate time period given for the remedy of defects, the customer is entitled according to the legal prescriptions to remedy the defect by its own technicians or to have the defect remedied by third parties and to demand from the contractor the compensation of the necessary expenses.

X. Liabilities of the contractor; exclusion of legal liabilities

1.   Should any parts of the subject matter of the repairs become damaged through fault of the contractor, then the contractor will be entitled hereunder, at its discretion to repair or re-supply such at its own expense. The duty to replace will however be limited to the amount of the contractual repair charge. Otherwise, paragraph IX will correspondingly apply.

2.   The contractor shall only be liable – for whatever legal ground – for damages which did not affect the subject matter of repairs itself for

a. acts of premeditation;

b.acts if gross negligence of the proprietor / corporate organs of managing employee;

c. acts of culpable harm to life, body and health;

d.defects which the contractor might deceivingly conceal

e. defects in the frame of a guarantee promise

f. injury to persons or damage to property used privately, in so far as a liability exists under the product liability legislation.

The contractor will also be legally liable for the culpable infringement of contractual duties as well as in cases of gross negligence of non-managerial workforce members and, in cases of slight negligence, limited in the last instance to liability for typically contractual, reasonable and foreseeable loss or damage.

Additional claims are excluded.

XI. Limitation

Any claims of the customer – for whatever legal ground – are subject to a limitation period of 12 months. For claims of damages according to paragraph IV 3 a-d and f, the legal limitation periods apply. In the case the contractor carries out the repair works at a construction and thereby causes its defectiveness, the legal limitation periods apply as well.

XII. Applicable law, place of jurisdiction

1.   The appropriate laws of the Federal Republic of Germany applicable to inland parties will exclusively apply to the legal relationship between the contractor and the customer.

2.   The place of jurisdiction is the court of law competent for the area of the registered office of the contractor. The contractor is however entitled hereunder to go to litigation at the court of law competent for the area of the registered office of the customer.

3.   Any agreement between the contractor and the customer shall be made in writing. Any amendment and supplementary agreement before or upon conclusion of the contract also require the written form to be valid.

4.   Should any of the provisions of the contract be or become invalid, the validity of the remaining provisions is not affected. The invalid provision shall be replaced by a provision which comes as close as possible to the intended economic effect.