GENERAL TERMS AND CONDITIONSTerms of delivery
§ 1 General
1 All our deliveries with entrepreneurs as customers are based on the following general terms of delivery. Entrepreneurs in the sense of the terms and conditions are natural or legal persons or partnerships with legal capacity who act in the exercise of a commercial or independent professional activity and with whom we enter into a business relationship. Deviating conditions of the customer, which we do not expressly accept in writing, are not binding for us, even if we do not expressly object to them. Our terms and conditions of delivery shall also apply even if we carry out the delivery to the customer without reservation in the knowledge that the customer's terms and conditions are contrary to or deviate from our terms and conditions of delivery. Our terms of delivery also apply to future business with the customer.
2. the assignment of the customer's rights from the contract is not permitted.
3. our offers are subject to change without notice. Collateral agreements, reservations, amendments or supplements to contracts must be in writing to be effective. Special agreements are only valid for the respective individual case, not for earlier or later transactions.
4. the customer is bound to an order placed with us for a period of two weeks after receipt by us. Such an order shall only be accepted by us by written declaration, by notification of our readiness to deliver or by making the delivery; receipt of the declaration of acceptance is not required for it to be valid (§ 151 BGB).
5. our prices are quoted exclusive of the respective, valid value-added tax ex pressing plus freight, assembly and packaging. If no fixed prices are contractually agreed, the prices valid on the day of delivery shall be charged. Agreed prices are valid for four months from the conclusion of the contract. If longer delivery periods are agreed, the supplier's prices valid on the day of delivery shall be charged.
6. we reserve all property rights or copyrights to cost estimates, drawings, hand samples and other documents without limitation; these may not be made available to third parties. Drawings and other documents belonging to quotations must be returned to us immediately on request if the order is not placed with us. Any rights of retention of the customer are excluded.
7. confirmed prices shall only apply to acceptance of the quantities for which they have been confirmed. In the event of deviations from the quantity ordered, we shall be entitled to adjust prices at our reasonable discretion.
§ 2 Delivery
1. delivery dates or delivery periods, which can be agreed upon bindingly or non-bindingly, must be recorded in writing to be effective. We reserve the right to correct and timely delivery to ourselves.
2. four weeks after exceeding a non-binding delivery date or a non-binding delivery period, the customer may request us in writing to deliver within a reasonable period of time. With this reminder we are in default. If the customer sets us a reasonable grace period for performance after we have already been in default, the customer shall be entitled to withdraw from the contract after the fruitless expiry of this grace period; the customer shall only be entitled to claims for damages for non-performance in the amount of the foreseeable damage if the default was due to intent or gross negligence.
3. if the customer is in default of acceptance or violates other obligations to cooperate, we shall be entitled, after expiry of a reasonable grace period, to demand compensation for the damage incurred by us, including any additional expenses. In this case, the risk of accidental loss or accidental deterioration of the purchased item shall also pass to the customer at the point in time at which the customer is in default of acceptance.
4. the beginning of the delivery time stated by us requires the clarification of all technical questions. An agreed delivery period shall be extended - without prejudice to our rights arising from the customer's default - by the period by which the customer is in default with his obligations under the contract. The delivery times shall be extended by the duration of any hindrance caused by force majeure.
§ 3 Liability for material defects
1) For defects of goods delivered by us, we shall initially provide a warranty at our discretion by repair or replacement. If this supplementary performance fails, the customer can basically demand a reduction of the remuneration (abatement) or withdraw from the contract at his own discretion. However, in the event of only a minor breach of contract, in particular in the case of only minor defects, the customer shall not be entitled to withdraw from the contract.
2. liability for defects does not apply to natural wear and tear, to damage occurring after the transfer of risk as a result of incorrect or negligent handling, excessive strain, unsuitable operating materials or operating rooms and those caused by chemical, electrochemical or electrical influences, unless these are prerequisites for use under the contract. The same shall apply to modifications and repair work on the delivered items carried out improperly by the customer or third parties. Insignificant, production-related or natural deviations in color, shape, appearance or consistency are excluded from liability for material defects.
3. if the customer chooses to withdraw from the contract after a failed subsequent performance due to a legal or material defect, he shall not be entitled to any additional claims for damages due to the defect. If the customer chooses to claim damages after a failed supplementary performance, the goods remain with the customer if this is reasonable. The compensation for damages is then limited to the difference between the purchase price and the value of the defective item. This does not apply if the breach of contract was caused by us maliciously.
4. entrepreneurs must notify us in writing of obvious defects within a period of two weeks from receipt of the goods, otherwise the assertion of warranty claims is excluded. The punctual dispatch suffices to meet the deadline. The customer bears the full burden of proof for all claim requirements, in particular for the defect itself, for the time of detection of the defect and for the timeliness of the notice of defects.
5. for entrepreneurs the warranty period is one year from delivery of the goods. This does not apply if the customer has not notified us of the defect in due time (item 4 of this provision). In the case of used goods, the customer shall bear the burden of proof for the defectiveness of the item.
6. the product description of the manufacturer shall be deemed to be the only decisive quality of the goods. Public statements, recommendations or advertising statements by the manufacturer do not represent any additional information about the contractual quality of the goods.
7. the customer does not receive guarantees in the legal sense from us. Manufacturer guarantees remain unaffected by this clause.
§ 4 Joint and several liability
In the case of slightly negligent breaches of duty, our liability shall be limited to the foreseeable, contract-typical, direct average damage according to the type of goods. This also applies to slightly negligent breaches of duty by our representatives or vicarious agents. We shall not be liable to companies for slightly negligent breaches of insignificant contractual obligations. The above limitations of liability do not affect the customer's claims arising from product liability.
Furthermore, the limitations of liability do not apply in the case of physical injury or damage to health.
§ 5 Payment
1. payments for deliveries are due according to the agreement made, without further agreement at the latest 30 days after the invoice date. The payment must be made in such a way that we can dispose of the amount on the due date. The customer shall bear the costs of payment transactions. Bills of exchange and discount charges shall be borne by the customer. They are due and payable immediately. The deduction of a discount requires special written agreement. Payments must be made in such a way that we can dispose of the amount on the due date. The customer shall bear the costs of payment transactions.
2 If the customer defaults on payment of a claim arising from the business relationship, we shall be entitled to demand interest on arrears at least at the statutory rate. If we are in a position to prove higher damages caused by default, we shall be entitled to claim such damages. However, the customer shall be entitled to prove to us that we have not incurred any damage or only significantly less damage as a result of the default in payment. In addition, we are entitled, in the event of the customer's default in payment, to make due any claims not yet due.
3. the customer shall only be entitled to set-off rights if his counterclaims have been legally established, are undisputed or have been recognized by us. In addition, he shall be entitled to exercise a right of retention insofar as his counterclaim is based on the same contractual relationship. The customer is also not entitled to a right of retention due to disputed counterclaims.
4. if the customer is in default of payment or does not honour a bill of exchange when due, we are entitled to take back the goods, enter the customer's premises if necessary and take the goods away. We can also prohibit the resale and removal of the delivered goods. Taking back the goods does not constitute a withdrawal from the contract.
5. if we subsequently become aware of circumstances which result in a significant deterioration of our assets and if our claim for payment is jeopardized as a result, we shall be entitled to make our claims payable in full and independently of the term of any bills of exchange we may have received.
6. in the cases of nos. 4 and 5, we may revoke the collection authorization (VI/4) and demand advance payment for outstanding deliveries.
7. the customer can avert the legal consequences mentioned in nos. 4 to 6 by providing sufficient security in the amount of our endangered payment claim.
8. the statutory provisions on default of payment shall remain unaffected. In the event that the customer does not comply with his payment or acceptance obligation, we shall be entitled to demand damages for non-performance after the legal requirements have been met. In this case, we are entitled to demand 3o % of the agreed remuneration as compensation, whereby proof of the damage is not required. The customer is free to prove that no damage has been incurred or that the damage is lower than the lump sum paid.
§ 6 Retention of title
All goods delivered shall remain our property (reserved goods) until all payment claims have been settled, in particular the respective balance claims to which we are entitled from the business relationship with the customer. This shall also apply to future and conditional claims, e.g. from acceptor's bills of exchange, and also if payments are made on specially designated claims. If the object of purchase is processed with other objects not belonging to us, we shall acquire co-ownership of the new object in proportion to the value of the object of purchase to the other processed objects at the time of processing. For the rest, the same shall apply to the object resulting from processing as to the object of sale delivered under reservation of title.
2. the customer may only sell the goods subject to retention of title in the ordinary course of business at his normal terms and conditions of business and as long as he is not in default, provided that the claims from the resale are transferred to us in accordance with Nos. 3 to 5. He is not entitled to dispose of the reserved goods in any other way.
3. the customer's claims from the resale of the reserved goods are hereby assigned to us. They serve as security to the same extent as the reserved goods. If the goods subject to retention of title are sold by the customer together with other goods not sold by us, the claim from the resale is assigned to us in proportion to the invoice value of the other goods sold. In the case of the sale of goods in which we have co-ownership shares in accordance with No. 2, a part corresponding to our co-ownership share is assigned to us.
The customer is entitled to collect claims from the resale, unless we revoke the collection authorization in the cases mentioned in section V/6. At our request, he shall be obliged to inform his customers immediately of the assignment to us - unless we do so ourselves - and to provide us with the information and documents necessary for collection. Under no circumstances shall the customer be entitled to further assignment of the claims. This also applies to factoring transactions, which the customer is not permitted to carry out even on the basis of our collection authorization.
5. the customer must inform us immediately of any seizure or other interference by third parties.
6. if the value of the existing securities exceeds the secured claims by more than 20% in total, we shall be obliged to release securities of our choice at the customer's request.
§ 7 Shipment, transfer of risk, packaging, partial delivery
1. we determine the dispatch route and means as well as the forwarding agent and carrier.
2. goods reported ready for dispatch in accordance with the contract must be called off immediately, otherwise we are entitled, after a reminder, to dispatch them at the customer's expense and risk at our discretion or to store them at our discretion and to invoice them immediately.
3. if, through no fault of our own, transport on the intended route or to the intended place in the intended time becomes impossible, we shall be entitled to deliver on another route or to another place; the additional costs incurred shall be borne by the customer. The customer will be given the opportunity to comment beforehand.
4. with the handing over of the goods to a forwarding agent or carrier, but at the latest when the goods leave the warehouse or the supplying plant, the risk, including that of seizure of the goods, shall pass to the customer in all transactions, also in the case of carriage-paid and carriage-paid deliveries. We will provide insurance only on the instructions and at the expense of the customer.
5. we are entitled to make partial deliveries to a reasonable extent with the consequence of being able to demand partial payment for the delivered goods. In these cases, the customer is obliged to pay the remuneration due for the partial delivery in accordance with the terms of payment (V). Excess and short deliveries of the completed quantity as is customary in the industry are permissible.
§ 8 Place of jurisdiction - place of performance
If the customer is a registered trader, Keltern is the place of jurisdiction; however, we are also entitled to sue the customer at the court of his place of residence. Unless otherwise stated in the order confirmation, Keltern is the place of performance. If the customer moves his residence or usual place of abode outside the area of application of the Federal Republic of Germany after conclusion of the contract, Keltern is the place of jurisdiction. This shall also apply if the customer's place of residence or usual abode is unknown at the time the action is filed.
The law of the Federal Republic of Germany applies. The application of the international purchase law (UN purchase law) is excluded.
Conditions of purchase and processing
§ 1 General - Scope
(1) Our Terms and Conditions of Purchase shall apply exclusively; we do not recognise 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.
In particular, we object to a reservation of title in terms of business conditions which are to be applied to us.
(2) Our Terms and Conditions of Purchase shall only apply vis-à-vis entrepreneurs pursuant to § 310 (4) BGB (German Civil Code).
§ 2 Offer - Offer documents
(1) The offerer is bound to his offer to us for a period of at least 8 weeks. This period is calculated from the date of receipt of the offer by us. Supplements and amendments to our contracts must be made in writing to be effective. If the supplier does not wish to accept an order from us, which is placed without a previous offer from the supplier, this must be declared to us within a period of one week, otherwise our order is deemed to have been accepted.
(2) 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 on the basis of our order; after completion of the order they are to be returned to us unsolicited. They are to be kept secret from third parties; in this respect, the provision of § 6 Paragraph (3) shall apply in addition.
(3) The assignment of rights arising from the contract concluded by us with the supplier is not permitted.
§ 3 Prices - Terms of payment
(1) All prices agreed with us are fixed prices for the term of the agreement concerned. The agreed prices include all freight, transport, packaging and insurance costs. The transport insurance is borne by the supplier up to our point of acceptance. The costs for the disposal of packaging are charged to the supplier at cost price.
(2) The statutory value added tax is included in the price.
(3) We can only process invoices if these - in accordance with the specifications in our order - state the order number shown there; the Supplier shall be responsible for all consequences arising from non-compliance with this obligation, unless he proves that he is not responsible for them.
(4) Unless different terms of payment are specified in a separate agreement, it shall be deemed agreed that invoices of the Supplier shall become due for payment no earlier than 30 days after receipt of the invoice by us (date of receipt stamp). If payment is made within two weeks of receipt of the invoice, we shall be entitled to deduct a 3% discount for early payment. We are decade payers. If the goods are not delivered or not delivered in accordance with the contract at the time of receipt of the invoice, the aforementioned period shall not commence until the goods are received and/or the contractual condition is established.
(5) Payments on our part shall always be made subject to invoice verification. Payments shall be made at our discretion by sending crossed cheques or by transfer to an account specified in the Supplier's business letters. The postmark of the outgoing post is decisive for the payment in due time. The risk of accidental loss of means of payment shall be borne by the recipient.
(6) Insofar as we are entitled to our own claims arising from the business relationship with the Supplier, we shall have a right of retention on account of these claims and the possibility of offsetting.
§ 4 Delivery time
(1) In the case of deliveries, excess or short quantities as well as partial deliveries shall only be accepted as being in accordance with the contract if agreed in writing. Unless otherwise agreed, all deliveries are to be delivered free domicile to the address we have specified. The supplier is obliged to state our order number exactly on all shipping documents and delivery bills; if he fails to do so, we are not responsible for delays in processing.
(2) For all deliveries, the risk shall not pass to us until the goods are handed over to us.
(3) If the supplier recognizes delivery disruptions occurring at his premises, he shall be obliged to notify us immediately by fax upon recognition; any agreed dates, in particular fixed dates, shall remain unaffected thereby. If the supplier fails to notify us immediately or is late in doing so, the supplier shall compensate us for all damages resulting from the failure to notify us or the late notification, without prejudice to all further claims.
(4) If fixed dates within the meaning of 361 BGB, 376 HGB (German Civil Code) have been agreed, we shall be entitled, if the deadline is exceeded, at our discretion to withdraw from the relevant delivery contract or, while maintaining our claim to performance, to demand payment of a contractual penalty amounting to 5% of the respective value of the goods not delivered by the fixed date for each week of delay up to an upper limit of 20%. The assertion of further damages caused by delay is not excluded.
§ 5 Inspection of defects - liability for defects
(1) We shall be obliged to inspect the goods within a reasonable period of time for any deviations in quality and quantity; the complaint shall be deemed to be in good time if it is received by the supplier within a period of 5 working days, calculated from receipt of the goods or, in the case of hidden defects, from their discovery.
(2) We shall be entitled to the statutory claims for defects in full; in any case, we shall be entitled to demand from the Supplier, at our discretion, either removal of the defect or delivery of a new item. We expressly reserve the right to claim damages, in particular damages instead of performance. Limitations of the supplier's liability on the merits or the amount are excluded.
(3) We shall be entitled to remedy the defect ourselves at the Supplier's expense if there is imminent danger or if there is a special urgency.
(4) The technical specifications belonging to the individual articles are part of the relevant supply contract and also apply to supplements or repeat orders. In case of delivery according to sample, the goods must comply with the specifications, properties and standards of the sample.
(5) The period of limitation for claims for defects shall be 36 months, calculated from the transfer of risk.
§ 6 Services by third parties, protection of confidence
(1) At our request, the supplier shall also be obliged to provide evidence of the qualifications of his sub-suppliers and to obtain our approval of the respective sub-supplier. We shall only make use of this possibility for objective reasons, in particular to ensure early delivery in accordance with the contract.
(2) Otherwise, the supplier shall perform its services itself and shall require our prior consent for the use of subcontractors. Changes to the delivery item, its packaging, composition, technology, etc. compared with the standard on which the contract was based at the time of conclusion of the contract shall only be permitted with our prior consent.
(3) Drawings, designs, samples, descriptions and records made available by us or produced on our behalf are our property and must be treated and stored in accordance with our instructions. They must be returned or surrendered to us immediately after completion of the order; any rights of retention of the supplier in this respect are excluded. The supplier is not entitled to use these documents for his own purposes or the purposes of third parties. They may not be made available to third parties or used for them even after completion of the orders. Products manufactured on the basis of these documents or with our tools or tools copied on the basis of these may not be used by the supplier in his own business without our consent nor may they be offered for sale or delivered to third parties. For each violation of this prohibition, a contractual penalty of EUR 10,000.00 shall be forfeited; the assertion of further damages shall not be excluded.
§ 7 Product liability - exemption - liability insurance protection
(1) Insofar as the supplier is responsible for damage to a product, he shall be obliged to indemnify us on first demand from claims for damages by third parties to the extent that the cause lies within his sphere of control and organisation and he himself is liable in the external relationship.
(2) Within the scope of his liability for cases of damage within the meaning of paragraph (1), the supplier shall also be obliged to reimburse any expenses pursuant to §§ 683, 670 BGB (German Civil Code) as well as pursuant to §§ 830, 840, 426 BGB (German Civil Code) which arise from or in connection with a recall action carried out by us. We will inform the supplier - as far as possible and reasonable - about the content and scope of the recall measures to be carried out and give him the opportunity to comment. Other legal claims shall remain unaffected.
(3) The supplier undertakes to maintain product liability insurance with a cover sum of EUR 10 million per personal injury/property damage - lump sum; if we are entitled to further claims for damages, these shall remain unaffected.
§ 8 Industrial property rights
(1) The Supplier warrants that no rights of third parties within the Federal Republic of Germany are violated in connection with his delivery.
(2) If claims are made against us by a third party for this reason, the supplier shall be obliged to indemnify us from these claims upon first written request; we shall not be entitled to make any agreements with the third party - without the supplier's consent - and in particular not to conclude a settlement.
(3) The supplier's obligation to indemnify us refers to all expenses which we necessarily incur from or in connection with the claim by a third party.
(4) The period of limitation shall be ten years, calculated from the conclusion of the contract.
§ 9 Retention of title - provision of materials - tools - secrecy
(1) If we provide parts to the supplier, we reserve the right of ownership. Processing or transformation by the supplier shall be carried out for us. 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.
(2) 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 our item (purchase price plus VAT) to the other mixed items at the time of mixing. If the mixing is carried out in such a way that the supplier's item is to be regarded as the main item, it shall be deemed agreed that the supplier shall transfer proportionate co-ownership to us; the supplier shall keep the sole ownership or co-ownership for us.
(3) Tools which are charged to us (also proportionately) shall be manufactured for us in accordance with § 950 BGB (German Civil Code) and shall become our property upon manufacture. The supplier is obliged to use our tools exclusively for the manufacture of the goods ordered by us. The supplier is obliged to insure the tools belonging to us at their replacement value at his own expense against fire, water and theft. At the same time, the supplier hereby assigns to us all compensation claims arising from this insurance; we hereby accept the assignment. The supplier is obliged to carry out any necessary maintenance and inspection work on our tools as well as all maintenance and repair work at his own expense and in good time.
He must notify us immediately of any malfunctions; if he culpably fails to do so, claims for damages shall remain unaffected. Tools which are charged to us (also proportionately) shall be manufactured for us in accordance with § 950 BGB and shall become our property upon manufacture.
(4) Insofar as the security rights 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 shall be obliged to release the security rights of our choice at the request of the suppliers.
§ 10 Processing / Subcontracting
(1) The following general terms and conditions shall apply in addition to all processing contracts commissioned by us. Conflicting general terms and conditions of the processor, which have not been expressly accepted in writing, are not binding for us, even if they are not expressly contradicted.
(2) The processing of the parts shall be carried out in accordance with our delivery specifications, in which the exact quality criteria are listed. These delivery specifications are part of the contract. The processor guarantees that the quality criteria are complied with in each case. If the processor is not in a position to comply with the quality criteria, he shall notify the customer thereof immediately upon receipt of the parts to be processed.
(3) The processor shall be obliged to check the material delivered to see whether it meets the prerequisites for meeting the contractually agreed quality criteria. If this is not the case, the processor shall inform the customer in writing without delay. If the processor does not immediately inform the customer to the contrary, the material shall be deemed to comply with the contract.
(4) The delivery times stated in the orders shall be binding on the processor unless they are immediately objected to in writing. If the delivery of the material by the customer is delayed in the case of several partial quantities delivered on the basis of one order, a contractually agreed processing period shall be extended accordingly. This shall not affect the binding nature of the processing time agreed.
(5) If the work performed by the processor does not meet the quality criteria agreed in accordance with item 2 and if the processor does not rectify the parts which do not meet the quality criteria within one week, the customer shall be entitled to commission a third party to rectify the defects and to demand the costs customary in the industry for this purpose from the processor in advance. The assertion of further damages remains unaffected by this.
(6) If the customer has justified concerns regarding compliance with the contractually agreed quality criteria, the processor shall be obliged to provide the customer with an expert opinion on compliance with the quality criteria at his own expense. If he does not comply with this obligation, he shall reimburse the costs incurred by the customer in obtaining the expert opinion.
(7) Claims for material defects due to non-compliance with the quality criteria shall become time-barred 36 months after delivery of the processed parts to the customer of the customer.
(8) The assertion of rights of retention on the basis of claims or the offsetting of such claims against claims of the processor shall be excluded unless these are undisputed or have been established as final and absolute. Any assignment of claims under this contract shall only be permitted with the express consent of the Buyer.
§ 11 Choice of law, place of jurisdiction
(1) German law shall apply to our business relationship with the supplier; the application of UN purchase law is excluded.
(2) 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 his place of residence.
(3) Unless otherwise stated in the order, our registered office shall be the place of performance.
§ 1 Conclusion of contract
The equipment sent to the Contractor by the Customer with a repair order will be checked by the Contractor for technical function and reparability and the defects to be notified by the Customer will be repaired as an individual service, taking into account Section 5 (repairs that cannot be carried out). If there is an uncontradicted written order confirmation, this is decisive for the content of the contract and the scope of the repair. Subsidiary agreements and contract amendments require the written confirmation of the contractor.
§ 2 Prices and payment
When calculating the repair on a time and material basis, the prices for parts, materials and special services used as well as the prices for work services, travel and transport costs shall be shown separately in each case. If the repair is carried out on the basis of a binding cost estimate, a reference to the cost estimate shall suffice; only the deviations in the scope of services shall then be listed separately. Any objection to the invoice by the Contractor must be made in writing no later than four weeks after receipt of the invoice. Payment shall be made immediately and without deduction of any discount when the invoice is sent. The withholding of payments or offsetting due to any counterclaims of the customer - disputed by the contractor - is not permitted.
§ 3 Cost information, cost estimate
If expressly requested, the customer will be informed of the expected repair price by means of a repair offer when the contract is concluded, otherwise the customer can set cost limits. If the repair cannot be carried out at these costs, or if the contractor considers it necessary to carry out additional work during the repair, the customer's consent must be obtained if the stated costs are exceeded by more than 15 percent. If a cost estimate with binding price estimates is desired before the execution of the repair, this must be requested expressly and in writing from the customer. Such a cost estimate is subject to a charge and only binding if it is submitted in writing and is described as binding. The services provided for the submission of the cost estimate will not be charged to the client if they can be used in the execution of the repair.
§ 4 Warranty
The warranty inspection and the warranty fulfillment on the object of repair shall take place exclusively on the premises of the Contractor. For this purpose, the Customer shall send the object of repair to the Contractor at its own expense. If the object of repair is subject to a warranty claim, the contractor is obliged to repair it or to send an equivalent replacement to the customer at his expense. After acceptance of the repair the contractor is only liable for defects of the work carried out by him. The warranty period is one year from the acceptance of the repair by the Customer. In the case of warranty, the contractor has the right to rectify the defect repeatedly if the first attempt to rectify the defect fails. The customer, for his part, must immediately notify the contractor in writing of any defect that has been discovered. His right to assert the defect no longer exists if he has not fulfilled his obligation to give notice of defects at the latest one week after the defect was discovered. The warranty period shall be extended by the duration of the downtime of the object of repair caused by the remedial work. The Contractor shall not be liable if the defect is insignificant for the interests of the Customer or is due to a circumstance attributable to the Customer. This applies in particular with regard to the parts provided by the customer. The liability of the contractor for the consequences resulting from improper changes or work carried out by the customer or third parties without the prior consent of the contractor shall be cancelled. If the contractor allows a reasonable period of grace granted to him to remedy the defect to elapse through his own fault, the customer has the right to reduce the price. The customer shall also have the right to reduce the price in other cases of repeated failure to remedy the defect. Only if the repair is demonstrably of no interest to the client despite the reduction, the client can withdraw from the contract after appropriate timely notice.
§ 5 Impossible repair
The services provided for the submission of a cost estimate as well as the further expenditure incurred and to be documented during the technical inspection of the equipment (troubleshooting time equals working time) shall be charged to the Customer if the repair cannot be carried out for reasons for which the Contractor is not responsible, in particular because
- the defect complained about did not occur during the inspection;
- a repair is no longer economically justifiable;
- spare parts cannot be procured;
- the customer has culpably failed to meet the agreed deadline or obligations to cooperate despite the setting of a deadline;
- the contract has been terminated during its execution;
The object to be repaired only needs to 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. Non-repairable equipment will be returned to the customer at the customer's expense. However, the customer can order the disposal of the non-repairable devices by the contractor against payment of the disposal costs.
§ 6 Transport and insurance
Unless otherwise agreed in writing, the outward and return transport of the object of repair - including any packaging and loading - shall be carried out at the expense of the Customer. The customer is free to collect the object of repair from the contractor after the repair has been carried out. The customer bears the transport risk. Upon written instruction of the customer, the outward and return transport will be insured against the insurable transport risks (e.g. theft, breakage, fire, etc.) at the customer's expense. During the repair period at the contractor's premises, there is no insurance cover. The Customer shall ensure that the existing insurance cover for the object of repair is maintained. Insurance cover for these risks can only be obtained at the express request of the customer. In the event of delays for which the customer is responsible (default), the contractor may charge storage fees for storage on his premises. The object of repair can be stored elsewhere at the discretion of the contractor. The costs and risk of storage shall be borne by the customer.
§ 7 Repair period
The information on repair times and periods is based on estimates and is therefore not binding. The agreement of a binding repair period, which must be designated as such in writing, can only be received by the client once the scope of the work has been precisely determined. The binding repair period is met when the item to be repaired is ready for return transport or collection by the client. In the case of additional and extension orders placed at a later date or if additional repair work is required, the agreed repair period shall be extended accordingly. If the repair is delayed due to measures in the context of industrial disputes, in particular strikes and lockouts, as well as the occurrence of circumstances for which the contractor is not responsible, the repair period shall be extended accordingly, provided that such obstacles can be proven to have a considerable influence on the completion of the repair; this shall also apply if such circumstances occur after the contractor has fallen behind schedule. If the customer demonstrably suffers damage as a result of the contractor's delay, he shall be entitled to demand compensation for delay to the exclusion of further claims. This shall amount to 5 percent for each full week of the delay, but in total not more than 50 percent of the repair price for that part of the object to be repaired by the contractor which cannot be used in time as a result of the delay. If the customer grants the contractor in delay a reasonable period of grace, which must include the threat of refusal of performance, and if this period of grace is not complied with, the customer shall be entitled to withdraw from the contract. Without prejudice to clause 10 of these provisions, no further claims shall exist.
§ 8 Acceptance
The customer is obliged to accept the repair work as soon as the object of repair is available to him again. If the work proves to be not in accordance with the contract, the contractor is obliged to remedy the defect. This does not apply if the defect is insignificant for the interests of the customer or is based on a circumstance which is attributable to the customer. If there is an insignificant defect, the client cannot refuse acceptance if the contractor expressly recognizes his obligation to eliminate the defect. If the acceptance is delayed through no fault of the contractor, the acceptance shall be deemed to have taken place after the expiry of a period of two weeks from notification of the completion of the repair. Upon acceptance, the Contractor's liability for identifiable defects shall cease, unless the Client has reserved the right to assert a specific defect.
§ 9 Reservation of title, extended lien
The contractor reserves the right of ownership of all accessories, spare and replacement parts used until receipt of all invoiced payments from the repair contract. Further security agreements can be made. The contractor is entitled to a lien on the object of the customer which came into his possession on the basis of the contract because of his claim from the repair contract. The lien can also be asserted for claims from work, deliveries and other services performed earlier.
§ 10 Other liability of the contractor, exclusion of liability
If parts of the object to be repaired are damaged through the fault of the contractor, the contractor shall, at his discretion, either repair them at his expense or supply new parts. The obligation to pay compensation shall be limited to the amount of the contractual repair price. Otherwise the following paragraph shall apply accordingly. Beyond the claims granted to him in these provisions, the customer may not assert any claims for compensation - in particular no claims for damages, including claims arising from non-contractual acts - or other rights against the contractor on account of any disadvantages connected with the repair. In this respect it is irrelevant on which legal ground he invokes. This exclusion of liability shall not apply in the event of gross negligence or intent on the part of the contractor or his employees or vicarious agents, or in the event of breach of material contractual obligations. In the event of culpable violation of essential contractual obligations, the contractor shall be liable - except in cases of gross negligence or intent - only for reasonably foreseeable damage typical for the contract. Furthermore, the exclusion of liability shall not apply in cases where liability is assumed under the Product Liability Act for personal injury or property damage to privately used objects in the event of repair errors. It also does not apply in the absence of properties that have been expressly warranted in writing, if the warranty was specifically intended to protect the customer against damage that did not occur to the object itself.
§ 11 Other provisions, place of jurisdiction
Insofar as the buyer is a business person or legal entity under public law or a special fund under public law, the registered office of the contractor shall be the place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship. All obligations arising from the contractual relationship shall be deemed to be performed at the registered office of the contractor. In any case, in particular in the case of cross-border deliveries, the law of the Federal Republic of Germany shall apply.