Vacuum and Plant Service

General Terms and Conditions of Contract and Delivery for business transaction of Meier Anlagenservice GmbH, Vennweg 16, 46395 Bocholt

Scope

The following General Terms and Conditions of Contract shall apply exclusively to all our offers, deliveries and services, and also to future business with the customer, unless express-ly agreed otherwise. Provisions of the customer that deviate from these Terms and Condi-tions shall only apply if we have given our explicit written consent thereto.

A. General provisions

I. Contract, prices, delivery and services

1. Telephone, telegraph, telex or verbal amendments, changes or additional agreements to the order require our written confirmation to become effective. If the customer requests changes in the scope of services to be provided, the parties shall agree an appropriate amendment to the contract, which the parties shall set out in an additional written agreement. Otherwise, we are entitled to reject the change request.

2. The agreed prices are net prices “ex works”, plus the costs of packing, carriage, shipping, installation and pre-assembly and the applicable statutory VAT rate. 

3. Our invoices are payable in full within 30 days of delivery, net cash.

If a preliminary inspection has been agreed, a partial amount of 50 % shall be payable after the preliminary inspection. Bills of exchange and cheques are accepted only on account of performance. The costs of discounting and collection shall be borne by the customer. 

4. The customer is only entitled to offset or retention if the counterclaims are undisputed or le-gally established. To exercise the right of retention, the customer’s counterclaim must be based on the same contractual relationship. 

5. A date of delivery or performance advised in writing shall be deemed to have been met once the readiness for dispatch has been communicated or the goods have left the place of dispatch. In the event of unforeseen circumstances which are beyond our control the date shall be postponed for the duration of any such circumstances. 

6. Partial deliveries and partial performance shall be permitted as long as this does not ad-versely affect the use.

7. If the goods are to be shipped, the method of shipment shall be at our discretion.

8. Any transfer of the customer's rights and obligations under the contract concluded with us require our prior written consent to become effective.

II. Compensation for damages and reimbursement of expenses

1. In the event of a breach of a pre-contractual, contractual and non-contractual duty, includ-ing tort and product liability, we shall only be liable for damages and the reimbursement of ex-penses if we ourselves or our vicarious agents are at fault, but only in cases of intent, gross negligence and slightly negligent breach of a material contractual obligation. E. II. 6. Sentence 2 shall not be affected. Except in cases of intent, our liability shall be limited to the damage that is typical and predictable at the time of the conclusion of the contract. The customer may not claim compensation for futile expenses.

2. Except in the case of a breach of material obligations, any liability for slight negligence is excluded and at all events is restricted to the amount of payment.

3. The exclusions and limitations of liability shall not apply if the quality of a delivery item is guaranteed within the meaning of Section 444 German Civil Code (BGB), in the case of fraudulent concealment of a defect, in the case of damage arising from injury to life, body or health as well as in the event of statutory liability under the Product Liability Act. The statutory provisions shall apply here. 

4. All damage claims against us, for whatever legal reason, shall become statute-barred not later than one year after delivery of the goods to the customer and in the case of tort shall be-come statute-barred one year from the time of knowledge or grossly negligent ignorance of the circumstances giving rise to the claim and the identity of the person liable to pay damag-es. If the law stipulates a shorter statute of limitations the shorter period shall apply. 

III. Duration and termination of contract

Permanent contracts shall start on signing of the contract and shall apply for an indefinite pe-riod of time. The parties are entitled to duly terminate the contract giving two months' notice to the end of a month.

The right to an extraordinary termination without notice for good cause remains unaffected. Good cause is deemed to be, amongst others, the opening of insolvency proceedings on the assets of the customer as well as the default of payment by the customer of more than one month.

IV. Place of performance, jurisdiction, applicable law

1. Place of performance is the place from which the goods are dispatched. The place of per-formance for payments made by the customer is our office in Bocholt.

2. Jurisdiction for all disputes arising from the contract, including action on bills of exchange, is the competent court of Bocholt. We are also entitled to file legal action at the customer’s headquarter.

3. German law shall apply exclusively.

V. Severability clause

Should individual provisions of these Terms and Conditions be or become invalid, the validity of the remaining provisions shall not be affected.

B. Special provisions with respect to repairs in our workshop 

1. Our warranty only covers the repaired or replaced parts.

2. The customer is obliged to cooperate in accordance with the content of the contract.

3. An acceptance report shall be drawn up and will be signed by us. 

4. The provisions under E. II No. 1, 5 to 7 shall apply mutatis mutandis to claims for defects.

5. Before the start of the requested work, it is the customer's duty to attach a completed dec-laration of contamination to the components to be repaired, for further use by or attention of the contractor.

C. Special provisions with respect to maintenance

1. The maintenance work shall be described specifically in separate maintenance reports, de-pending on the technical requirements of a plant or of the object to be serviced. The customer shall procure any requisite spare parts based on these reports. The contractor shall be re-sponsible for the disposal of any removed parts and materials. The customer shall be notified in good time about any required maintenance work which is not detailed in the maintenance report.

2. Maintenance services shall not include 

a) the correction of faults based on improper use, outside force (in particular vandalism) or operating errors, 

b) any adjustment or modification due to new or amended provisions,

unless these services have been commissioned separately by the customer. In the event that the parties are unable to agree on a separate contract within three months of establishing the need for adjustments that have become necessary due to provisions relating to the construc-tion, operation or maintenance of the plants covered by the contract, they may terminate the maintenance contract, giving two months' notice.

3. The contractor's service hotline is available from Monday to Thursday, between 6:30 a.m. and 4:00 p.m. and Friday between 6:30 a.m. and 11:00 a.m. for the purposes of reporting equipment malfunctions. If the problem cannot be resolved or remedied via telephone, a ser-vice technician can be on site within 48 hours of receiving the customer's report and, in the case of malfunctions reported on Fridays after 11:00 a.m. and on weekdays before a public holiday, a service technician can be on site on the next working day within 24 hours. These periods may be longer if the distance to the customer's site makes flights or travel by car of more than 8 hours necessary. 

4. The customer is obliged to cooperate in accordance with the content of the contract and in particular to provide the requisite information. The customer shall grant us access to the premises and provide the equipment, connections, operating supplies such as electricity, wa-ter, fuels and - where necessary - the personnel free of charge to provide the services. The maintenance environment must comply with the statutory provisions, and in particular with the provisions on occupational health and safety and accident prevention, and must be conducive to maintenance in terms of temperature, air humidity, ventilation, lighting, noise and the like. The customer shall take the necessary measures that may be reasonably expected to estab-lish malfunctions and their causes.

5. Any work not included in the maintenance reports will be charged additionally on a time and expenditure basis in accordance with the general rates for technicians. Any replaced plant parts procured by us will be charged separately. The parties are entitled to an adjustment of payments in proportion to the change in costs for the year following the current contractual year if they claim the adjustment not later than four months before the end of the contractual year. Should this be unreasonable for the other party, the other party may terminate the maintenance contract at the end of the first quarter of the subsequent year by giving one month notice following notification.

6. The provisions in E. II No. 1, 5 to 7 shall apply mutatis mutandis to claims for defects.

D. Special provisions for the rental and loan of equipment

1. The customer may use the subject matter of contract only for its intended purpose. Any expenses required to use it shall be borne by the customer.

2. If the customer is prevented from using the subject matter of contract for reasons for which we are not responsible, the agreed consideration to be paid by the customer shall still be pay-able.

3. The customer is not entitled to make any alterations to the subject matter of contract with-out our consent.

4. The customer shall be liable without limitation for any damage resulting from improper use by the customer or any third party.

5. In the event that the subject matter of contract is not returned properly and in due time, the customer shall be liable and pay compensation for use, in the case of rental in the amount of the agreed rent. The customer reserves the right to prove that no or less damage resulted.

E. Special provisions for the sale of new, spare and wearing parts

I. Retention of title

1. We shall retain the title to the delivered items until receipt of payment.

2. The assertion of the retention of title and the pledging of the delivery item by us shall not be deemed to be a rescission of the contract unless we have explicitly declared this in writing.

3. For the duration of the retention of title, the customer is obliged to treat the delivery item with care; in particular, the customer is obliged to take out, at his own expense, adequate re-placement value insurance against fire, water and theft as from the date the item is ready for dispatch. 

4. The customer is entitled to resell the delivery item in the ordinary course of business; how-ever, the customer shall assign to us here and now all claims in the amount of the purchase price agreed between us and the customer (including value added tax) which arise to the cus-tomer from the resale, irrespective of whether the delivery item is resold without or after pro-cessing. The customer is entitled to collect these receivables after their assignment as long as the customer does not become insolvent, is not in default with his payments or as long as the satisfaction of our claims is not otherwise at risk. Without prejudice to our right to 

collect the claims ourselves, we undertake not to collect the receivables during that time. Otherwise, we may also require that the customer discloses the assigned claims and their debtors, provides all information necessary for collection, delivers the relevant documents and notifies the debtors (third parties) of the assignment. In this case, any goods which have not yet been delivered must be handed over to us on request, freight paid and free of all charges. The customer hereby grants us permission to remove and dispose of the goods by way of auction or private sale through a person appointed by the Chamber of Industry and Commerce and to offset the proceeds against the net purchase price. 

5. Any processing or transformation of the delivery item by the customer is always carried out on our behalf. If the delivery item is processed together with other items which do not belong to us, we shall acquire co-ownership in the new item in the proportion of the value of the item delivered by us to the other processed items at the time of processing.

6. If the delivery item is inseparably amalgamated with other items not belonging to us, we shall acquire co-ownership of the new item in the proportion of the value of the delivery item to the other amalgamated items. If the amalgamation is such that the customer’s item is to be viewed as the main item, it is deemed to have been agreed that the customer shall transfer co-ownership to us on a pro rata basis. 

7. The customer shall keep the item which has been created by processing, alteration or amalgamation and to which we have sole ownership or co-ownership in safe custody free of charge for us.

8. To secure our claims against him, the customer shall also assign to us the claims which accrue against a third party by combining the delivery items with a piece of land.

9. The customer is not entitled to pledge or transfer the delivery item as security. In the event of pledges, seizure or any other orders by third parties the customer shall notify us immediate-ly and provide us with all available information and documents that are necessary to protect our rights. Enforcement officers or third parties are to be informed of our property rights.

10. We undertake to release the securities to which we are entitled at the request of the cus-tomer if their value exceeds the claims to be secured by more than 20 %, provided that such claims have not been settled.

II. Liability for defects 

1. The warranty period for claims based on defects is 12 months as from the transfer of risk.

2. When performing an acceptance inspection, the delivery item shall be deemed to have been approved despite existing defects, if the defects were visible and the customer has not reserved any rights arising from product defects in the acceptance report. In all other re-spects, the obligation to give notice of defects as set out in Section 377 (2) of the German Commercial Code (HGB) shall apply. The complaint must be made in writing.

3. Warranty is excluded for used goods.

4. Public statements made by the manufacturer (Section 4 Product Liability Act (ProdhaftG)) or by his agents on certain characteristics, including without limitation in advertising or in label-ling, shall not constitute a specific characteristic that may be expected of the delivery item. 

5. In the event that a justified complaint is made within the stipulated time period, the custom-er, with due observance of his interests, can only claim supplementary performance. We may require that the customer himself carries out, according to our instructions, the work that is covered by our warranty, provided that the customer can reasonably be expected to do so. Should the complaint prove to be justified we shall bear the resulting costs; otherwise the cus-tomer shall pay the costs. 

6. If the customer cannot be reasonably expected to accept further attempts to provide sub-sequent performance, he may request the cancellation of the contract or a reduction in the purchase price instead. Our warranty does not entitle the customer to receive payment for damages. Provided that a withdrawal is not excluded by law, the customer is entitled to with-draw from the contract or demand a reduction in the purchase price only if a reasonable peri-od of time specified by the customer for rectification has expired without success, unless such a period of time can be dispensed with under the statutory provisions (Section 323 (2) BGB, Section 440 BGB, Section 441 (1) BGB). In the event of withdrawal, the customer is li-able for any deterioration, loss and benefit not obtained resulting from any negligence and in-tent.

7. The remedying of one of the defects by way of supplementary performance, involving rec-tification of the defect or the delivery of a defect-free item, shall not be construed as an acknowledgement. Where the delivery item is partially replaced in the course of supplemen-tary performance, the limitation period shall recommence only with respect to the replaced parts. 

 

Status: 26.09.2016

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