General terms and conditions for repair work on machines and systems of HUBTEX Maschinenbau GmbH & Co. KG

Transcription

1 General terms and conditions for repair work on machines and systems of HUBTEX Maschinenbau GmbH & Co. KG 1 General scope (1) These general terms and conditions (hereinafter referred to as GTC) exclusively apply to repair, inspection and after-sales services of HUBTEX Maschinenbau GmbH & Co. KG (hereinafter referred to as "HUBTEX ), such as the installation of spare and replacement parts; the terms and conditions of the customer which conflict with or deviate from these GTC are not accepted by HUBTEX, unless HUBTEX has expressly approved their applicability in writing. These GTC shall also apply if HUBTEX is aware of customer's terms and conditions that oppose or deviate from these GTC, accepts the order and renders the services to such customer without any reservation. (2) All agreements made between HUBTEX and the customer for the purpose of the execution of this contract must be put down in writing in this contract. Verbal collateral agreements do not exist. (3) With the exception of managers and authorized representatives, the employees of HUBTEX are not authorized to make verbal agreements which deviate from the written agreement, including these GTC. (4) These GTC only apply in relation to entrepreneurs within the meaning of 310 Subsection 4 of the German Civil Code. (5) These GTC also apply to all future business transactions with the customer, unless any other explicit arrangement is made. This especially applies to any future contracts concluded orally (e.g. by telephone). 2 Placement of order, quotation (1) If the customer requests a service technician from HUBTEX for any repair and after-sales service, or sends the subject matter of order to HUBTEX for this purpose, this shall, in the absence of any more detailed specifications provided by the customer, be regarded as order for the determination of the necessary repair and after-sales services at the customer's expense and as order for the provision of the repair and after-sales services thus determined, in return for payment. (2) If the repair and after-sales service to be provided is subject to a prior quotation, a written order must be placed by the customer with reference to the quotation afterwards. (3) HUBTEX may accept orders within a period of five working days after their receipt, unless otherwise indicated in the order. Acceptance of order can be declared by a written order confirmation or by rendering the service ordered. The customer only receives a written order confirmation upon explicit request. (4) The customer bears the cost of the preparation of the quotation. If the customer entrusts HUBTEX with the provision of the services, the aforementioned cost shall be offset. (5) Unless explicitly agreed otherwise, quotations may only be regarded as non-binding cost estimates and do not contain any final declaration regarding the amount of cost for repair expenditure and spare parts. If it becomes apparent afterwards that the repair and after-sales service cannot be provided at the estimated costs or if HUBTEX considers it necessary to perform additional service work, the prior consent of the customer must be obtained if the estimated costs are exceeded by more than 15 percent. (6) All offers of the contractor are subject to confirmation and are not legally binding, unless they are explicitly designated as being binding or a time limit for acceptance is indicated. This especially applies to any information regarding start, duration and completion of the service. 3 Prices and terms of payment / right of retention / set-off (1) The remuneration is based on the list prices applicable at the point in time of placement of order (spare part price lists) and the hourly rates and/or calculation rates of HUBTEX. (2) HUBTEX is entitled to charge an appropriate advance payment amounting to 5 percent of the anticipated total remuneration (including any spare/replacement parts) upon contract conclusion. Hubtex is entitled to charge the customer for partial services that form a closed unit prior to the acceptance of the entire service to be rendered. (3) In the calculation of the repair and after-sales services, the prices for the parts and materials used and the special services provided as well as the prices for manpower, travel and transport costs must be stated separately in each case. (4) The regular working week comprises 35 working hours. It is distributed over five weekdays (Monday through Thursday from 7:00 a.m. until 03:15 p.m. and Friday from 7:00 a.m. until 12:00

2 noon). During the normal working hours, our mechanics are entitled to 0.75 hours of break. Extra pays are calculated for working and travel time going beyond the normal working hours as well as for work on Saturdays: (a) 25 percent for the first two overtime hours, 50 percent from the third overtime hour. (b) Sunday work: 100 percent. (c) Work on public holidays: 150 percent. Even without the express instruction by the customer, HUBTEX is entitled to generate working and travel hours which are subject to an extra pay on working days, if HUBTEX considers it necessary in the customer's interest. Working and travel hours on Saturdays and Sundays are only generated upon the explicit instruction by the customer. The public holiday regulation in the place of action applies to the calculation of such extra pays. (5) Waiting time which is not attributable to HUBTEX shall be borne by the customer and shall be paid as normal working time. (6) The value added tax at the appropriate statutory rate is additionally charged, and is to be paid by the customer. (7) Any correction of the invoice on the part of the contractor and any complaint on the part of the customer must take place in writing, no later than four weeks after receipt of invoice. (8) Payment is to be made without any cash discount upon acceptance and handover or sending of the invoice. (9) Should it become evident after the conclusion of the contract, that the settlement of the outstanding payment claims from the relevant contractual relationship (including that of other single orders from the ongoing business relationship which seem to form a natural unit, due to their temporal or factual connection, or for which the same framework agreement applies) is jeopardized by the client's inability to fulfil his payment obligations, the seller shall be entitled, (a) to make/render any outstanding deliveries or services only against advance payment or the provision of security, (b) to withdraw from the contract if, within a reasonable period of time set by the seller, the customer fails to effect payment or to provide security concurrently with the delivery of outstanding goods or the performance of outstanding services, at the customer's choice, (c) to withdraw from any contract on the manufacture of unique goods (products made to specification), if, within a reasonable period of time set by the seller, the customer fails to effect payment or to provide security, at the customer's choice, without the necessity of providing the counterperformance concurrently (delivery versus payment). (10) The customer shall only be entitled to assert his right to refuse performance or his right of retention if and insofar as the payment claim of HUBTEX and the counterclaim of the customer are based on the same contractual relationship. (11) Vis-à-vis the claims of HUBTEX, the customer may only offset uncontested claims or claims which have been declared res judicata. 4 Credit entry for exchanged old parts The customer receives a credit note amounting to 10 percent of the spare part price/replacement price if the exchanged part is in a refurbishable and reusable condition, corresponds to the delivered replacement part with regard to quantity, model and final assembly/completion, if the old part is free of defects which are not attributable to proper and normal wear and tear and the old part is assigned to HUBTEX for reuse. 5 Provision of the services, customer's duties to cooperate (1) The repair and after-sales services are provided on the premises of HUBTEX, on the customer's premises or in the place of use of the device. HUBTEX can demand that the subject matter of order is sent to the place of business of HUBTEX if this is necessary according to the type and scope of the repair and after-sales services to be provided. Unless the assertion of warranty claims due to unsatisfactory services provided by HUBTEX is concerned, the travel, transport and delivery costs must be borne by the customer. (2) Unless the repair is performed in the place of business of HUBTEX, the customer shall take special measures required for the protection of persons and property in the place where the repair and aftersales services are provided. The customer also has to inform the service technicians of HUBTEX about existing special safety regulations. (3) Moreover, the customer has the obligation to provide technical support and to make all reasonable preparations which are necessary for the execution of the order. In particular he has to

3 (a) provide the most comprehensive details possible on the anticipated, necessary services and the required spare parts, as early as during the placement of the order; (b) in the case of an execution of the order outside the company premises of HUBTEX (aa) make suitable rooms and, if required, auxiliary personnel available at no charge and to provide the required auxiliary means (e.g. necessary hoisting equipment and heavy tools, oils, fuels etc. according to the maintenance instructions, waste oil containers etc.) at his expense; (bb) provide heating, lighting, water, including the necessary connections; (cc) provide the required, dry and lockable rooms for storing the tools of the service technicians of HUBTEX as well as suitable staff facilities for the service technicians (break rooms, bathrooms) and First Aid; (dd) protect the place of the repair and after-sales services and the repair materials against all types of harmful influences as well as to clean the place of repair; (ee) provide the materials and to take all other measures required for the adjustment of the item to be repaired and the performance of a necessary test. (4) The technical support of the customer must ensure that the repair and after-sales service work can be started immediately after arrival of the service technician/s and performed without delay until the acceptance by the customer. If special plans, technical drawings etc. or instructions of the customer are required, the customer shall make them available on time. (5) If the customer fails to comply with his aforementioned obligations according to 4 (2), (3) and (4) and after the unsuccessful expiry of a time limit set for the customer, HUBTEX shall be authorized, but not obliged, to carry out the measures to be performed by the customer in lieu of the customer and at the customer's expense. Apart from that, the legal rights and claims of HUBTEX shall remain unaffected. 6 Transport and insurance in case of repair in the HUBTEX factory (1) Unless otherwise agreed, the outbound transport and return transport of the item to be repaired which is performed upon the customer's request, including any packaging and loading, shall take place at the customer's expense. Otherwise the customer has to deliver the item to be repaired at his own expense to the contractor, and to pick up the item to be repaired from the contractor's premises after completion of the repair work again. (2) The customer bears the risk of transportation. (3) Upon the customer's request, insurance shall be taken out at the customer's expense for the outbound transport and, if applicable, the return transport to provide insurance cover against insurable transport risks such as theft, breakage or fire. (4) There is no insurance cover during the repair period in the factory of the contractor. The customer has to make sure that the existing insurance cover for the item to be repaired is maintained, e.g. with regard to losses caused by fire, tap water, storm, or machine failure. Insurance cover against these risks can only be provided upon the explicit request of the customer and at the customer's expense. (5) If the customer is in default of acceptance, the contractor shall be entitled to charge the customer storage costs which are usual in that location for the storage of the item(s) in his factory. The item to be repaired can also be stored otherwise at the discretion of the contractor. Cost and storage shall be borne by the customer. 7 Acceptance (1) A formal acceptance to be declared explicitly is not required. (2) An acceptance shall be deemed to be given if the service has been substantially completely rendered by HUBTEX and the customer - pays the remuneration agreed upon without reservation, - signs an export confirmation, - has used the object for a period of five working days, and has refrained from performing the acceptance within the aforementioned period of time, for any reason other than any defect reported to HUBTEX, which makes the use of the object impossible or which impairs the use of the object to an extent that is not merely negligible. (3) Apart from that, the customer has to accept the object after notification of completion by HUBTEX within five working days, insofar as the object is complete and free of defects. Insignificant defects do not affect the duty of acceptance of the customer ( 640 Subsection 1 S. 2 of the German Civil Code). After expiration of the time limit, the service shall be regarded as accepted ( 640 Subsection 1 S. 3 of the German Civil Code), without HUBTEX being required to set another deadline.

4 (4) If the customer accepts a defective object although the defect is already known to him, he shall only be entitled to the warranty claims according to 634 of the German Civil Code No. 1 to 3 if he has reserved his rights associated with this defect upon acceptance. 8 Retention of title to accessory parts and spare parts / lien (1) HUBTEX remains the owner of all employed accessory parts, spare parts and replacement units until all claims arising from the business relationship vis-à-vis the customer are satisfied. (2) If goods subject to retention of title are joined inseparably to other objects that do not belong to HUBTEX, HUBTEX shall acquire a share in the ownership of the new object, in the proportion of the objective value of the goods subject to retention of title to the other connected objects at the time of the connection. If the connection takes place in a way that the object of the customer is to be regarded as the main object, it shall be deemed to be agreed that the supplier transfers co-ownership to HUBTEX on a pro rata basis. The customer shall safeguard the thus created sole property or coproperty for HUBTEX. (3) For the duration of the reservation of title, the customer may not pledge or transfer by way of security any goods under retention of title. In case of seizure, attachment or any other disposal or intervention by any third party, the customer must notify HUBTEX thereof immediately. (4) If the realizable value of all security rights to which HUBTEX is entitled exceeds the sum of all secured claims by more than 10 percent, HUBTEX shall release a corresponding portion of the security rights at the customer's request. It is presumed that the premises of the sentence mentioned before are fulfilled when the estimated value of the securities to which HUBTEX is entitled achieves or exceeds 150 percent of the value of the secured claims. HUBTEX shall have the right to decide which security rights are to be released. (5) Due to the claims arising from this contract, HUBTEX is entitled to a lien on the customer's item to be repaired which has come into HUBTEX' possession on the basis of this contract. The lien covers all claims from current and former orders on repair, inspection or after-sales services as well as all claims with regard to other services associated with the subject matter of the order to which HUBTEX is entitled at the point in time when such claim is created. 9 Warranty for defects withdrawal (1) Unless otherwise specified in the text that follows, the statutory provisions shall apply with regard to the rights of the customer in the case of quality defects and defects of title, within the scope of the repair and after-sales services performed. (2) The customer shall not be entitled to assert any claim for defects if the defect is to be attributed to acts of violence, normal wear or incorrect operation. The same applies if the customer fails to comply with the provisions of operating instructions concerning treatment, maintenance and care (prescribed service intervals, lubrication and maintenance work etc.), proper usage or operating conditions and this non-compliance is the reason for this defect. (3) In the interest of a rapid claims settlement and a proper preservation of evidence, the repair and after-sales services rendered (as far as reasonable, after weighing the interests of both parties) are to be inspected for obvious defects immediately after their completion. (a) Warranty claims shall only be granted if obvious and perceptible defects are asserted against HUBTEX within four weeks after acceptance ( 6). (b) Apart from that, the warranty claims of the customer require that defects which appear or are recognized at a later time are reported to HUBTEX within 14 days after their discovery. (4) In any case, HUBTEX has the right to choose between the elimination of defects and the delivery of a new item and/or the provision of a new service. The customer's request for supplementary performance must be submitted in writing. HUBTEX shall be granted a period of 14 days for supplementary performance, provided that this can be reasonably expected from the customer in the individual case. (5) The supplementary performance only covers those parts of the service which show the defect or the parts which have been inevitably damaged due to the defect, despite proper handling. (6) If the repair and after-sales service requires supplementary performance, such supplementary performance shall only be deemed to have failed following a second unsuccessful attempt. (7) If the supplementary performance fails, the customer shall be entitled to choose between reduction of the price or withdrawal from the contract. This shall not affect the statutory provisions concerning cases where it is not necessary to allow a period of grace. The application of the 478, 479 of the German Civil Code (claim to recourse of the entrepreneur) shall remain unaffected. The

5 right of the customer to demand compensation for damage according to 9 of these terms and conditions also remains unaffected. (8) The claims to withdraw from the contract and to demand compensation instead of performance shall be excluded if and insofar as the defect asserted by the customer does not at all restrict or merely insignificantly restricts the suitability of the service/work for the utilization assumed by the contract or for the utilization which is customary in the case of services/works of the same type and HUBTEX has not assumed any warranty with regard to the service/work to be performed. (9) Apart from that, the customer shall only be entitled to withdraw from the contract within the scope of the statutory provisions if HUBTEX is responsible for the breach of duty. However, the statutory provisions regarding withdrawal apply in the case of defects or deficiencies. (10) Without prejudice to any further claims which HUBTEX may have, in the case of an unjustified complaint about a defect made by the customer, the customer has to reimburse HUBTEX for the expenses incurred for testing and - if demanded by the customer - for the elimination of the defect. 10 Limitation of liability (1) Unless otherwise stipulated in these GTC including the following provisions, the contractor shall be liable for any breach of contractual and non-contractual obligations according to the relevant statutory provisions. (2) The contractor shall be liable for damages in the case of intent or gross negligence of the contractor or any representative or vicarious agent of the contractor - irrespective of the legal ground. In the case of simple negligence, the contractor shall only be liable a) for damage arising from injury to life, body or health, b) for damage arising from the breach of any material contractual duty. (Material contractual duties are the duty for a timely, defect-free delivery and installation as well as the duty to give advice, the duty of protection and the duty of care which are all intended to allow a use of the supplied item or service by the customer in accordance with the contractual provisions, or to protect the life and limb of the customer's staff or the staff of third parties or the customer's property against considerable damage); in this case, however, the contractor's liability, even in the case of gross negligence - with the exception of willful act - shall be restricted to the compensation of the foreseeable, typically arising damage (damage which, upon contract conclusion, the contractor has foreseen as possible consequence of a breach of contract or, having regard to the circumstances which were known to him or which he should have known, which he should have foreseen if he had acted with the level of care typical in commercial relations. Indirect damage or consequential damage which is the result of deficiencies of the supplied item or service, is in addition only reimbursable insofar as such damage is to be typically expected in the proper usage of the supplied item or service.) (3) The exclusions and limitations of liability provided for hereinabove shall apply to the same extent in favour of bodies, legal representatives, employees or other vicarious agents of the seller. (4) If the contractor provides technical information or acts in any advisory capacity and such information or advisory activity is not included in the agreed upon scope of supply and services to be provided by the contractor, this then is carried out at no charge and under the exclusion of any liability. (5) The restrictions of this 8 shall not apply if the contractor has fraudulently concealed a deficiency or has assumed a warranty pertaining to the condition of the object. The same applies to claims of the customer according to the Product Liability Act. (6) The right of the contractor to withdraw from the contract ( 7 no. 6) remains unaffected. The above provisions do not imply a change in the burden of proof to the disadvantage of the customer. 11 Reductions of the limitation period (1) The limitation period for claims and rights arising from defects and deficiencies in the deliveries and services is one year - irrespective of the legal ground. However, this shall not apply to cases of the 438 Subsection 1 No. 1 of the German Civil Code (defects as to title with regard to immovable objects), 438 Subsection 1 No. 2 of the German Civil Code (buildings, objects for buildings), 479 Subsection 1 of the German Civil Code (claim to recourse of the entrepreneur) or 634 a Subsection 1 No. 2 of the German Civil Code (buildings or works, the success of which lies in the performance of planning or monitoring services). With regard to the aforementioned cases which are excluded according to clause 2, the statutory periods of limitation shall apply. (2) If refurbished second-hand spare or replacement parts have been used upon customer's request, the limitation period for claims based on defects of these spare and replacement parts is six months.

6 (3) The limitation periods according to clause 1 and 2 also apply to all claims for damages against the contractor if such claims are related to the defect - irrespective of the legal ground of such claim. The statutory periods of limitation shall apply to claims for damages insofar as there any types of claims for damages against the contractor, which are not related to any defect. The limitation periods for claims for damages also apply to the reimbursement of futile expenses. (4) However, the limitation periods according to clause 1, 2 and clause 3 shall apply subject to the following proviso: a) As a matter of principle, the limitation periods do not apply in the case of intent or in the case of fraudulent concealment of a defect or if HUBTEX has assumed a warranty pertaining to the condition of the supplied item or service. b) Furthermore, the limitation periods do not apply to claims for damages in the case of a grossly negligent breach of obligation and in the cases of injury to life, body or health or in the case of claims according to the Product Liability Act. (5) The limitation period for all claims begins when the subject matter of the contract is delivered or when the services have been accepted. (6) Unless explicitly stipulated to the contrary, the statutory provisions on the start of the limitation period, suspension of the expiry of the limitation period and the suspension and restarting of set periods shall remain unaffected. (7) The above provisions do not imply a change in the burden of proof to the disadvantage of the customer. 12 Final provisions (1) Place of jurisdiction for any disputes arising from the business relationship between the customer and HUBTEX is the place of business of HUBTEX. Mandatory statutory provisions on exclusive jurisdictions shall remain unaffected by this provision. (2) The business relations between HUBTEX and the customer shall be exclusively subject to the laws of the Federal Republic of Germany. The United Nations Convention on Contracts for the International Sale of Goods (CISG) dated 11 April 1980 does not apply. (3) If the contract or these GTC contain loopholes, in place of these loopholes, legally effective regulations shall apply, which the contracting parties would have agreed upon according to the economic objectives of the contract and the purpose of these General Delivery Terms if they had known that there was a loophole. Note: The customer notes that HUBTEX stores data from the contractual relationship according to 28 of the Federal Data Protection Act for the purpose of data processing and reserves the right to transfer such data to third parties (e.g. insurance companies) in as much as it is necessary for the fulfillment of the contract.