General Terms and Conditions 07/2018
The following conditions form part of the contract by mutual agreement. They have precedence over any differing purchasing conditions or similar of the customer. Deviations, additions as well as special confirmations require the written form to be effective.
I) Service and repair conditions
1.1. Where the following conditions do not specifically contain a regulation, work on buildings (construction services) shall be subject to the Verdingungsordnung für Bauleistungen (VOB German standard construction terms) part B and applicable DIN 18299, DIN 18382, DIN 18384, DIN 18385 and DIN 18386 as "General Technical Contract Conditions for Construction Services (ATV)" and also sections of part C (VOB/B or VOB/C).
1.2. The quote of the contractor includes documents such as illustrations, drawings etc. which are only to be viewed as approximate in regards to dimensions and weights, unless dimensions and weights accuracy has been expressly confirmed. The contractor retains the ownership and copyright of these documents. They may not be passed on to third parties without the consent of the contractor or misused in any other way. If the order is not placed, individual customer documents must be returned automatically and on demand in other circumstances without delay.
2.1. The agreed delivery or completion dates are only binding if compliance is not made impossible due to circumstances outside the contractor's control. Such circumstances including changes to or missing documentation (building permit, among others), are required to perform the order.
2.2. In the event of a delay (when performing construction services), the customer only has the rights granted by art. 8 no. 3 VOB/B if start and completion calendar dates were agreed in writing and the customer has provided a reasonable grace period after the expiry of the deadline and declared that, if this grace period expires fruitlessly, the customer will withdraw their order.
3. Costs for not performed/completed orders
As the time taken for troubleshooting is working time, this time and the resulting costs will be billed to a customer if an order cannot be performed due to:
3.1. The existing fault cannot be determined using current standard engineering practice;
3.2. The customer negligently failed to meet the agreed deadline;
3.3. The order was withdrawn during its implementation.
If a quote is created on the request of the customer, the costs involved may be billed to them regardless of whether a subsequent repair order is placed or not. The calculation of these costs presupposes that the contractor has concluded a separate service contract for the creation of a quote with the customer and the costs requirement is governed therein.
5. Warranty and liability
5.1. The warranty period of 12 months applies for all performed works (repairs) and for all incorporated materials. If a construction service has been provided, the regulations in art. 13 VOB/B shall apply exclusively.
5.2. The customer must allow the contractor a reasonable period of time and the opportunity to fix any errors. The customer must ensure that the object in question is available for inspection by the contractor or his representative, and for the contractor or his representative to repair. If the customer refuses the foregoing obligations or a delay is unreasonable, the contractor is exempted from liability for the fault(s).
5.3. Excluded from any warranty claim are:
Faults caused by damage, incorrect connection or incorrect operation by the customer, damages caused by force majeure, such as lightning, faults due to wear by overloading mechanical or electromagnetic parts, faults due to improper use or faults due to contamination, faults due to mechanical, chemical or atmospheric influences.
5.4. The warranty claim due to interference by the customer or third parties to the object to be repaired does not expire if the customer is able to disprove a substantiated claim by the contractor firming the fault caused by interference.
5.5. Obvious defects in the services provided by the contractor must be reported by the customer to the contractor within 5 working days after the acceptance of the services, otherwise the contractor is released from liability for such defects.
5.6. The contractor is liable for damage and loss caused to the object forming the basis of the contract to the extent that he or his agents were at fault. In the event of damage, he is obligated to perform repairs at no cost. If this is impossible, or accompanied by disproportionately high costs, the replacement value is to be paid. The same applies in the case of loss; paragraph I, 6.2 of these terms and conditions remains unaffected. Any further claims, in particular claims for damages by the customer, are excluded as long as they are not due to intentional or grossly negligent behaviour by the contractor or his agents. Insofar as a limitation of liability for minor negligence arises in the event of a positive breach of contract or fault in the conclusion of the contract in favour of the contractor, this limitation applies to the customer accordingly.
5.7 For orders to determine the cause in the business of the customer, the contractor is only liable for the accuracy of the measurement and its evaluation at the time the measurement was taken and to the maximum value of the contract, in the event of gross negligence, to the sum covered by the corporate third party liability insurance.
6. Increased rights of lien on moveable property for the contractor
6.1 The contractor is entitled to lien to the sum of his claim from the contract on property belonging to the customer which has come into his possession as a result of the order. The lien rights may also be asserted due to work completed earlier, spare parts deliveries and other services, as long as they are connected to the object in question. The lien rights for other claims arising from the business relationship only exist where these claims are undisputed or have become legally binding.
6.2. If the object has not been picked up within 4 weeks after the customer has been requested to pick it up, the contractor has the right to charge storage fees after this deadline has expired. If the pick-up has not been accomplished after 3 months of the collection request, the obligation to continue storing and all liability for damage caused by minor negligence or loss expires. One month before the expiry of this deadline a notice of potential sale will be sent to the customer. The contractor is entitled to dispose of the object by selling it at market value after the expiry of this deadline to cover his claims. Any excess is to be refunded to the customer.
7. Retention of title
As long as the spare parts, or similar, needed to perform repairs do not form a significant part of the item, the contractor retains the ownership of these installed parts until the contractor's invoice resulting from the contract has been settled. If the customer defaults on the payment, or does not meet the obligations resulting from the retention of title, the contractor can demand the object from the customer for the purpose of removing the fitted parts. All costs relating to collection and removal are borne by the customer. If the repair takes place at the customer's site, the customer must allow the contractor the opportunity to perform the removal at the customer's site. Labour and travel costs are charged to the customer. If the customer does not facilitate the removal, article 7, para. 2, clauses 1 and 2 shall apply.
II) Terms and Conditions of Sale
1. Retention of title
The objects and systems sold remain the property of the seller until the customer has fulfilled his/her obligations resulting from this contract. The retention of title also remains for all demands which the seller has against the customer in conjunction with the object of purchase. For example, due to repairs or deliveries of spare parts or other services which are subsequently procured. The latter does not apply if repairs performed by the contractor are unreasonably delayed or ineffective. The objects may not be sold on to third parties, rented, leased or given away, nor may they be passed to third parties for repair until the aforementioned claims of the seller have been fulfilled. Also, the use of the object for mortgage or security purposes is forbidden. If the customer is a dealer (reseller), the sale is permitted as part of his/her usual business procedures on the condition that the receivables due from the recipient or third parties as a result of this sale including all other rights to the value of the invoice of the seller are assigned to the seller at this time. For the duration of the retention of title, the customer is entitled to possess and use the object of sale as long as he fulfills his/her obligations resulting from the retention of title and is not in default of payment. If the customer is in default of payment, or does not meet the obligations from the retention of title, the seller can reclaim the object of sale from the buyer and, after the expiry of a reasonable deadline, can sell the object privately at the best possible price which will be offset against the purchase price. All costs resulting from the recovery and sale of the object of sale are borne by the buyer. In the event of third party access, in particular in the event of the item of sale being seized or if a workshop exercises its right of corporate lien, the customer has to immediately inform the seller in writing and also immediately inform the third party of the retention of title of the buyer. The buyer bears all costs resulting from the removal of the access and a replacement of the object of sale if necessary, to the extent of not being allowed to be collected from third parties. The buyer has the obligation to keep the object of sale in good condition for the duration of the retention of title as well as to allow all maintenance work and prescribed repair work to be carried out by the seller without delay. The seller is obliged to release any securities provided to him/her as long as their value is more than 10% higher than the value of the claims to be secured, and as long as these claims have not been settled.
2. Acceptance and acceptance delay
If the customer does not properly accept the object, the seller is entitled to set his/her a reasonable period of grace, and afterwards expires to dispose of the object elsewhere and to deliver the customer with a replacement delivery after a reasonable extension to the deadline. The seller's right to set a period of grace with the threat of denial of service (art. 326 German Civil Code, BGB) and to withdraw from the contract or to make a claim for damages remains unaffected. As part of a claim for damages, the seller can demand 20% of the agreed price without VAT as damages without proof, as long as it cannot be demonstrated that considerably lower damages have occurred. The seller reserves the right to make a claim for higher damages if such damages actually arise. The customer is obliged to accept part deliveries (advance deliveries) as long as they are reasonable.
3. Warranty and liability
The warranty period of 12 months applies for all new objects and systems sold from the date of delivery. Obvious defects must, however, be reported within 10 working days of commissioning, otherwise the seller is exempt from the liability for such defects, warranty periods are performed free of charge. Transportation and travelling costs for portable devices in the normal business catchment area are not covered in case of exceeding the purchase price of the object.
3.1. In the event of warranty claims, the seller must, on request of the customer, provide a replacement free of charge if the fault cannot be corrected with available spare parts within 5 weeks or the seller refuses to perform the repair or this involves an unreasonable delay. If the replacement delivery does not take place (impossibility or unreasonable delay by the seller), the customer can either reduce the payment or withdraw from the contract according to his/her decision.
3.2. If warranty claims are made, they must be substantiated by presenting the invoice or other proof of purchase.
3.3. Excluded from any warranty claim are:
Faults caused by damage, incorrect connection or incorrect operation by the customer, damages caused by force majeure, such as lightning, faults due to wear or overloading mechanical or electromagnetic parts, faults due to improper use or faults due to contamination, faults due to mechanical, chemical or atmospheric influences.
3.4. The warranty claim due to interference by the customer or third parties to the object does not expire if the customer is able to disprove a substantiated claim by the seller firming the fault caused by interference.
3.5. All further claims by the customer, including all claims for consequential damage and damage caused during the performance of the repair or replacement delivery are excluded as long as they do not result from gross negligence or intent. Insofar as a limitation of liability for minor negligence arises in the event of a positive breach of contract or fault in the conclusion of the contract in favour of the seller, this limitation applies to the customer accordingly.
3.6. For the sale of used equipment, unless the seller is legally required to bear liability or otherwise agreed, all warranty from the seller is excluded.
In the event of withdrawal, the seller and customer are obliged to return all services received from the other party. The value of any usage or wear is to be compensated for and any loss in value of the object of sale is to be taken into account here.
lll.) Common conditions for services, repairs and sales
1. Prices and payment terms
1.1. The final prices are ex works of the contractor or seller and exclude the statutory VAT.
1.2. All invoices are, unless otherwise agreed in writing, payable immediately without deductions on presentation of the invoice and in one amount. Partial payments for sales are only possible if agreed previously in writing.
1.3. If the customer defaults on payment obligations, the customer must refund any costs to the contractor or seller resulting from this delay, at a minimum per the statutory interest due.
1.4. For services not included in the order or differing from the services described, a supplementary quotation may be requested by the customer or may be provided by the contractor. If this does not take place, these services will be invoiced according to their scope and time. Regarding the notification and verification of timed work, art. 15 no. 5 VOB/B applies for any construction services provided.
1.5. For the orders taking their execution longer than one month, payments amounting to 90% of the respective value of the work to be provided, are to be made in instalments according to the respective value of the completed work. These instalment payments will be demanded by the contractor and are to be paid within 10 days of invoice date by the customer.
1.6. If the prices of raw materials change during the execution of an order, we reserve the right to make appropriate adjustments to the prices.
2. Place of jurisdiction
For all current and future claims resulting from the business relationship with trading entities, including bill of exchange and cheque payments, the exclusive place of jurisdiction is that of the headquarters of the contractor or the seller. The same place of jurisdiction applies when the customer does not have a general place of jurisdiction within the country, moves or changes his place of residence abroad after the conclusion of the contract, or where his place of domicile or residence is not known at the time any plaint is raised. In accordance with the conditions of points I, 1.1 and 1.2 of the printed General Terms and Conditions for the execution of construction services, the warranty and liability stated in art. 13 VOB/B exclusively apply. Art. 13 no. 4 VOB/B has the following content:
1. If no limitation period for the warranty has been agreed in the contract, for buildings and wood disease it is 2 years, for other work on a property and for parts of furnaces in contact with flames, it is 1 year.
2. For mechanical and electronic/electrical systems or parts thereof, where the maintenance has an influence on the safety and functionality of the same, the limitation period for any warranty claims is 1 year (differs from para. 1), if the customer has decided not to pass the responsibility for maintenance to the contractor for the period of limitation.
3. The period begins with the acceptance of the entire services; only for self-contained parts of the service, it starts with the partial acceptance (g 12 no. 2a).
IV. ) Special conditions for the storage and repair with transportation as a supplementary service
For the above-mentioned services, the German Freight Forwarders’ Standard Terms and Conditions (ADSp) in their latest version apply exclusively to transport contracts, especially storage contracts, concluded between the parties. Other conditions are not part of the contract.
1.1 VOGELSANG stores the customer’s machines in a warehouse operated by VOGELSANG.
1.2 The maintenance measures to be carried out in individual cases are supplementary warehousing contract services that are included in the agreed warehousing charges according to the individual agreements or are invoiced at cost.
1.3 The customer’s machines are taken out of storage within times and deadlines to be agreed separately after receipt of corresponding instructions in text form.
1.4 If, in accordance with the agreement, VOGELSANG undertakes to carry out the transportation or to procure transportation to the warehouse or from the warehouse to the customer, within the scope of its contractual transport obligations, VOGELSANG undertakes to comply with the German Freight Forwarders’ Standard Terms and Conditions (ADSp) as agreed.
2 Place of performance and transport
2.1 The place of performance for all services, including works services, is exclusively the Vogelsang plant in Bochum or the chosen storage location.
2.2 If machines are to be collected from the customer, here too, if VOGELSANG procures the transportation or carries it out itself, the risk transfers to VOGELSANG at the end of the unloading of the vehicle arriving at VOGELSANG. In case of transportation of the machines by VOGELSANG and from the warehouse to the customer or a third party, the risk passes to the customer at the start of loading onto the transporting vehicle.
2.3 If VOGELSANG procures the transportation of machines, VOGELSANG charges commission on the freight to be paid to the carrier at a separately agreed rate. The organisation or execution of the transport by VOGELSANG has no effect on the transfer of risk.
3.1. In accordance with No. 28 of the German Freight Forwarders’ Standard Terms and Conditions (ADSp), VOGELSANG has taken out freight forwarding liability insurance at standard market conditions which covers liability as a warehouse keeper and other transport contracts.
3.2. Since there may be considerable deviations between the liability as warehouse keeper and the value of the machines covered by the contract, VOGELSANG offers the customer the insurance of the machines through a transport and warehouse insurance. The prerequisite for the provision of the insurance by VOGELSANG in favour of the customer is commissioning by the customer in written form stating the value of the machines.
Vogelsang Elektromotoren GmbH
Valid July 2018