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Conditions for repairs to machines and plants for domestic companies

For use with

1. a person concluding the contract as part of carrying out their commercial or independent professional activities (company owner)
2. legal entities under public law or a public law special fund.

I. Conclusion of contract, general information

1. If there is a written order confirmation containing contradictory information, then this shall be decisive for determining the content of the contract and scope of the repair.

2. If the repaired object is not delivered by the Contractor, then the customer must refer to existing commercial property rights for the object; if the Contractor is not culpable for the damage, then the customer shall indemnify the Contractor against any third party claims related to commercial property rights.

II. Repair which cannot be completed

1. Services provided in order to deliver a suggested cost, and further costs (which must be verified, including both work time and time to identify the problem) shall be invoiced to the customer if the repair cannot be completed for reasons for which the Contractor is not responsible, in particular because

  • the error about which the complaint was submitted was not noted during the inspection,
  • replacement parts are not available,
  • the customer missed the agreed deadline, and was culpable for doing so,
  • the contract was terminated while carrying out the work.

2. The repaired object only needs to be returned to its original condition at the express request of the customer and if costs are reimbursed, unless the work performed was not necessary.

3. If a repair cannot be carried out, the Contractor shall not be liable for damage to the repaired object, the violation of contractual ancillary obligations or for damages that did not occur to the repaired object itself, regardless of the customer's legal grounds for asserting such damages. However, the Contractor shall be liable for intentional actions, gross negligence on the part of its owner / bodies or executive employees and for the culpable violation of significant contractual obligations. In case of a culpable violation of significant contractual obligations, the Contractor shall only be liable for damages that are typical for the contract in question and reasonably foreseeable, except in cases of intentional action and gross negligence by the owner / bodies or executive employees.

III. Cost information and suggested costs

1. If possible, the customer shall be provided with the projected repair price when the contract is concluded; otherwise, the customer can stipulate a cost limit.

If the repair cannot be carried out at this cost, or if the Contractor believes additional work is required in order to carry out the repair, then the customer's approval must be obtained if the indicated cost will be exceeded by more than 15%.

2. If a suggested cost with binding pricing information is desired before the repair is completed, then the customer must expressly request this. Such a suggested cost is only binding if it is delivered in writing, unless otherwise agreed. It must be compensated. The services involved in delivering the suggested cost shall not be charged to the customer if they can be reimbursed by carrying out the repair.

IV. Price and payment

1. The Contractor is entitled to request an appropriate advance payment when the contract is concluded.

2. When invoicing the repairs, prices for the parts used, materials and special services, as well as the prices for work performed, travel and transportation costs must each be listed separately. If the repair is carried out based on a binding suggested cost, then this must be referenced. Only deviations in the scope of performance need to be specifically listed.

3. VAT shall be invoiced to the customer at the current statutory rate.

4. If the Contractor wants to correct the invoice or if the customer wants to submit a complaint, they must do so in writing, at the latest four weeks after receiving the invoice.

5. Payment shall be due for payment upon acceptance and delivery or transmission of the invoice without discounts.

6. Payments may not be reserved due to any counter-claims of the customer which are disputed by the Contractor.

7. Offsetting due to any counter-claims of the customer which are disputed by the Contractor resulting from other legal relationships is not permitted.

V. Collaboration and technical assistance by the customer for repairs completed outside of the Contractor's facilities

1. The customer must support repair personnel in carrying out the repair at its own cost.

2. The customer must take the specialized measures necessary to protect personnel and materials at the repair site. It must also inform the repair manager of any special safety regulations, if these apply to the repair personnel. It must inform the Contractor if the repair personnel violate any such safety regulations. If the violation is serious, it may deny access to the repair site for the violating person, in coordination with the repair manager.

3. The customer is obligated to provide technical assistance at its own cost, in particular for the purposes of:

a) providing the required and suitable auxiliary personnel in the number necessary for the repair and for the required time; auxiliary personnel must follow the instructions of the repair manager. The Contractor shall accept no liability for the auxiliary personnel. If auxiliary personnel cause a defect or damages based on the instructions of the repair manager, then the regulations of sections X and XI apply accordingly.

b) carrying out all construction, bedding and scaffolding work, including purchasing necessary construction materials.

c) providing necessary equipment and heavy-duty tools as well as the required consumable materials and supplies.

d) providing heating, lighting, operating power, water, including the necessary connections.

e) providing the required dry and lockable rooms in order to store the repair personnel's tools.

f) protecting the repair site and materials from harmful influences of any kind, cleaning the repair site.

g) providing suitable, theft-proof break rooms and work rooms (with heating, lighting, washing facilities, sanitary facilities) and first aid for the repair personnel.

h) providing materials and taking all other actions necessary to adjust the repaired object and carry out any contractually specified testing.

4. The customer's technical assistance must ensure that the repair can be started promptly after repair personnel arrive, and can be carried out by the customer without delay through to acceptance. If special plans or instructions from the Contractor are necessary, then the Contractor shall provide these to the customer promptly.

5. If the customer does not fulfil its obligations, then the Contractor shall be entitled, but not obligated, to carry out the work which the customer is obligated to perform in its place and at its cost, after setting an appropriate grace period. Otherwise, the statutory rights and claims of the Contractor shall remain unaffected.

VI. Transportation and insurance for repairs carried out at the Contractor's facilities

1. If not otherwise agreed in writing, any transportation of the repaired object to and from the site carried out at the customer's request, including any packaging and loading, shall be carried out at the cost of the customer. Otherwise, the repaired object shall be delivered to the Contractor at the customer's cost and picked up by the customer again at the Contractor's facility after the repair is completed.

2. The customer shall bear all risks related to transportation.

3. Upon request by the customer, transport shall be insured at the customer's cost against insurable risks related to transit, such as theft, breakage, and fire.

4. There shall be no insurance protection while the repair is being carried out in the Contractor's facilities. The customer shall ensure that existing insurance protection for the repaired object, for instance against fire, flood, and storm damage, or machine breakage insurance, is maintained. Insurance protection for such hazards can only be purchased at the express request and at the cost of the customer.

5. If the customer delays pick-up, the Contractor may charge a storage fee for storage in its facilities. The repaired object can also be stored elsewhere/in some other manner at the discretion of the Contractor. The cost and risks related to storage shall be borne by the customer.

VII. Repair term, delayed repairs

1. The repair terms provided are based on estimates and are therefore non-binding.

2. The customer can only request agreement of a binding repair term, which must be designated as binding, if the scope of the work is defined in detail.

3. The binding repair term is considered fulfilled if the repaired object is ready for pick-up by the customer at the end of the term, or ready for any contractually stipulated testing.

4. If additional or extension orders are granted later, or if additional repair work is required, then the agreed repair term shall be extended accordingly.

5. If the repair is delayed due to measures related to labour disputes, in particular strikes or lockouts, or if any circumstances occur for which the Contractor is not responsible, then the repair term shall be delayed accordingly if such obstacles can be verified to have a significant influence on the completion of the repair.

6. If the customer incurs any damages due to default by the Contractor, then it shall be entitled to request a flat-rate compensation for the default. This shall be 0.5% for each full week of delay, and at most 5% of the repair price for the part of the object to be repaired by the Contractor that cannot be used by the specified time due to the delay.

If the customer sets a reasonable grace period after the due date for the Contractor to perform its services, in consideration of statutory exceptions, and the Contractor does not complete its services within this grace period, then the customer shall be entitled to withdraw from the agreement in compliance with the law. The customer hereby undertakes to declare whether it is withdrawing from the agreement upon request by the Contractor, within a reasonable time period. Further claims resulting from default shall be determined exclusively in accordance with section XI. 3 of these conditions.

VIII. Acceptance

1. The customer is obligated to accept the repair work once it has been notified that the work is completed, and any contractually specified testing of the repaired object has been completed. If the repair does not conform to the contract, then the Contractor is obligated to correct any defects. This does not apply if the defect is not significant in relation to the customer's interests, or results from a circumstance that is the fault of the customer. The customer cannot deny acceptance if the defect is insignificant.

2. If acceptance is delayed at no fault of the Contractor, then acceptance shall be considered completed two weeks after notification was received that the repair was complete.

3. Following acceptance, the Contractor shall no longer be liable for any detectable defects, unless the customer has reserved the right to assert claims for a certain defect.

IX. Retention of ownership, extended right of lien

1. The Contractor reserves ownership to all accessories, replacement parts and replacement units it uses, until all payments are received under the repair contract. Further security agreements can be concluded.

2. The Contractor shall have a right of lien to the customer's repaired objects which come into its possession under the contract, as a result of its claims under the repair contract. The right of lien can also be asserted based on claims from previously completed work, replacement part deliveries and other services, if these were associated with the repaired object. The right of lien only applies to other claims resulting from the business relationship if these are undisputed or legally binding.

X. Claims for defects

1. After the repair is accepted, the Contractor shall be liable for defects in the repair, excluding all other claims of the customer, regardless of no. 5 and 6 and section XI, such that it must correct the defects. Once the customer has discovered a defect, it must notify the Contractor of this promptly and in writing.

2. The Contractor is not liable if the defect is not significant in relation to the customer's interests, or results from a circumstance that is the fault of the customer. This applies in particular to parts provided by the customer.

3. If any modifications or repair work are completed improperly by the customer or a third party without the prior approval of the Contractor, then the Contractor shall not be liable for any resulting consequences. Only in urgent cases in which operational security is endangered, or to prevent unreasonably high damages (of which the Contractor must be informed immediately) or, if the Contractor has failed to meet a reasonable grace period set for it to repair the defect – in consideration of the statutory exceptions – does the customer have the right to correct the defect itself or have it corrected by third parties in accordance with the law, and to demand that the Contractor reimburse the related costs.

4. If a legitimate complaint is submitted, the Contractor shall bear costs directly related to correcting the defect, as long as this does not represent an unreasonable burden for the Contractor.

5. If the Contractor fails to meet a grace period set for it to correct the defect – in consideration of statutory exceptions – then the customer shall have the right to reduce its payment as stipulated by law. The customer can only withdraw from the agreement if the repair would verifiably not be of interest to the customer, despite the reduction.

6. Further claims shall be determined exclusively in accordance with section XI.3 of these conditions.

XI. Liability of the Contractor, exclusion of liability

1. If parts of the repaired object are damaged and this is the fault of the Contractor, then the Contractor must repair these, deliver new parts or ensure they are replaced, at its own cost and discretion. Related necessary costs shall be limited to the contractual repair price in cases of slight negligence and gross negligence by non-executive employees. Furthermore, it shall be liable for damages to the repaired object according to section XI.3.

2. If the repaired object cannot be used in accordance with the contract by the customer, due to the Contractor's failure to provide suggestions or advising, or providing incorrect suggestions or advice either before or after the contract is concluded, or due to culpable violation of other ancillary contractual obligations – in particular instructions for operating and maintaining the repaired object – then the regulations of sections X and XI apply, excluding further claims by the customer. 1 and

3. The Contractor shall only be liable for damages that are not incurred to the repaired object itself, regardless of their legal grounds, in cases of

a. intentional action,
b. gross negligence on the part of the owner / bodies or executive employees,
c. culpable injury to life, health or body,
d. defects it has intentionally concealed, e. under warranty claims,
f. if liability exists for personal injuries or property damage to privately used objects under the Product Liability Act.

In case of culpable violations of significant contractual obligations, the Contractor shall also be liable for gross negligence by non-executive employees and slight negligence, whereas the latter shall be limited to typical damages for the contract that are reasonably foreseeable. Further claims are excluded.

XII. Expiration

All claims of the customer, regardless of their legal grounds, shall expire in 12 months. The statutory terms apply to claims for damages in accordance with section XI. 3 a–d and f. If the Contractor performs the repair work on a building and causes defects by its work, the statutory terms shall likewise apply.

XIII. Indemnification

If repair work is completed outside of the Contractor's facilities and the equipment or tools provided by it are damaged or lost at the repair location due to no fault of the Contractor, then the customer shall be obligated to reimburse these damages. This does not include damages resulting from normal wear and tear.

XIV. Applicable law, place of jurisdiction

1. The law of the Federal Republic of Germany which is exclusively applicable to legal relationships between domestic parties shall apply to all legal relationships between the Contractor and the customer.

2. The place of jurisdiction shall be the court responsible for the Contractor's headquarters. However, the Contractor is entitled to file suit at the location of the customer's headquarters.

VDMA
Last updated August 2012