Repair and assembly terms and conditions
Repair and assembly terms and conditions of Motoren Franke GmbH for business transactions with companies and legal entities under public law Status 01.01.2008
I. General
1. These conditions apply to repair work (repairs) and assembly work.
2. Deviations apply only if they have been confirmed in writing by the contractor. The same applies to conflicting conditions of the customer, even if they have not been expressly rejected. 5. If the customer is a merchant, the place of performance shall be Magdeburg. Under this condition, either Krefeld or the competent court for the place of residence of our contractual partner shall also be decisive - at our discretion. This expressly also applies to the document, cheque and bill of exchange proceedings. 7. The personnel is not authorised to carry out work other than that which has been contractually agreed.
8. it finds the right of the Federal Republic of Germany application.
II. cost estimate
1. Written cost estimates are only binding if they are expressly designated as binding in writing and repair can be started immediately. They can be exceeded by 10 % if the execution of additional work or the use of additional parts or materials proves to be necessary upon commencement of work or during execution of the order.
2. If the customer terminates the contract, whether because of exceeding the cost estimate or for other reasons, he must pay for the work and costs incurred up to then, including the expenses for ordered and already procured spare parts.
III. due date and payment of the invoice amount
1. The invoice amount is due upon completion or acceptance of the repair, at the latest, however, on the day of receipt of the invoice. The invoice amount is to be paid without deduction.
2. Payment instructions, cheques and bills of exchange will only be accepted after special agreement and only on account of payment not in lieu of performance under calculation of all bill and discount charges. The passing on and prolongation are not considered as fulfillment.
3. If the customer is in arrears with his payments, we are entitled to charge interest on arrears in the amount of 5% p.a. above the respective base rate of the European Central Bank. This shall not apply if we can prove that we incurred higher damages as a result of the default in payment. This shall also not apply if the customer proves that no damage or substantially less damage has been incurred as a result of the delay.
4. Complaints regarding an invoice must be made in writing and within 14 days of the invoice date.
5. Withholding payments or offsetting due to any counterclaims of the customer contested by the contractor and not legally established are excluded. In all other respects a retention is permissible insofar as the asserted claim is based on the underlying contractual relationship.
IV. Period for the execution of the repair < br /> 1. A period indicated as binding begins only after complete clarification of all questions concerning the order. It shall be extended appropriately if the original scope of work increases.
2. In the event of unforeseeable operational impediments, e.g. cessation of work, lawful strikes or lockouts as well as all other events for which we are not responsible, the contractual periods shall be extended appropriately.
3. If the Contractor is in default, he shall be obliged to pay the Customer a compensation for delay amounting to 0.5% of the invoice amount per completed week of default, but no more than 5%. If the customer, according to which the contractor is in default, withdraws from the contract under the conditions of § 323 BGB (German Civil Code), he shall only be entitled to claims for damages due to non-performance or claims for reimbursement of futile expenses if the delay in delivery was due to intent or gross negligence. Claims for damages due to non-fulfilment or claims for reimbursement of futile expenses shall also accrue to the Customer in cases of intent and gross negligence on the part of the Contractor if the underlying contract is a transaction for delivery by a fixed date pursuant to § 376 HGB (German Commercial Code). The same shall apply if the Customer's interest in the repair has ceased to exist as a result of the delay. The rights of the customer according to § 637 BGB remain unaffected. (4) Force majeure not only of a temporary nature entitles the contractor to withdraw from the contract.
V. Acceptance of the repair and assembly < br /> 1. The contractor must inform the client of the completion of a repair or assembly. The sending of the invoice is also considered as notification. Acceptance must take place within one week of the notification becoming known. In the case of acceptance with engine test bench run within one day.
2. Acceptance is generally carried out in the contractor's workshop or where the work has been carried out. If the repair has not been objected to at the time of acceptance by the customer or if the acceptance has not taken place in due time, the object of the contract is deemed to have been duly accepted if the customer has put it into use without objection.
VI. Risk assumption and transport
1. The outward and return transport of the object to be repaired is in principle the responsibility of the client, who also bears the risk of loss or damage during transport.
2. If the transport is undertaken by the contractor in accordance with the agreement, this is at the expense and risk of the client, even if the transport is carried out with the contractor's vehicles.
VII. ownership, retention and lien
1. The ownership of the built-in aggregates, spare parts and accessories remains, as far as it can be reserved, up to the complete payment with the contractor. 3. An existing retention of title extends to securing all claims from deliveries and services resulting from the business relationship with the client, including future claims from contracts concluded at the same time or later. This shall also apply if individual or all of our claims have been included in a current account and the balance has been struck and acknowledged. If the value of the securities existing for the contractor exceeds the liabilities of the customer by more than 15%, the contractor is obliged to release securities to this extent at the request of the customer.
4. The contractor can exercise a right of retention on the subject matter of the contract until payment has been made in accordance with section 3 and payments for earlier deliveries and services of the contractor have also been made.
5. the contractor shall be entitled to a lien on the object of the contract. If the contractor makes use of his right to sell the object as a pledge, he will threaten the customer with the sale as a pledge and inform him of this in good time, insofar as this is feasible and possible under the circumstances.
6. The customer hereby assigns his claim to transfer of ownership (expectant right) to the contractor, insofar as he is not the owner of the device to be repaired or the machine to be repaired. The expectant right serves within the scope of paragraph (1) to secure the contractor's claims.
VIII. Warranty and liability
1. Defects must be reported and described in writing immediately and - also in the case of verbal or telephone prior notification - in writing.
2. The warranty obligation expires at the latest 12 months after acceptance.
3. If the contractor is obliged to assume liability for material defects, the client shall initially only be entitled to demand subsequent improvement. If we are not willing or able to remedy the defects/deliver a replacement, in particular if the remedy/delivery of a replacement is delayed beyond the reasonable deadlines set by us or if we refuse to carry out the remedy/delivery of a replacement or if this fails for other reasons, then the customer shall be entitled to withdraw from the contract or demand a reduction in the remuneration in accordance with § 634 clause 3. 5. The Contractor shall decide on the necessary repair work. The contractor shall be entitled to a reasonable period of time for the repair work.
6. The contractor shall not be liable for damage - irrespective of the legal reason - which has not occurred to the object of the order itself. However, this does not apply if the cause of the damage is based on intent or gross negligence. The liability for guarantees assumed by us according to § 276 BGB remains unaffected. Furthermore, this shall not apply if we have culpably breached a cardinal obligation or an essential contractual obligation.
IX. Invoicing of the repair/assembly
1. The hourly rates are calculated according to the contractor's price list valid on the day of the start of work.
2. If the arrival and departure are carried out with the contractor's own vehicles (customer service vehicles) or if the assembly personnel uses their own vehicles, kilometre rates are calculated according to the price list.
3. Other costs such as travel allowance, travel and accommodation costs, freight charges, etc., are calculated separately.
X. The customer is obliged to provide the energy required for the repair (lighting, electricity, fuels, water) as well as auxiliary and lifting equipment at his own expense and risk during repairs and assemblies outside the workshop of the contractor.