General terms and conditions for service (GTS)

 

General terms and conditions of Elried Markierungssysteme GmbH

for service (GTS)

 

Non-binding translation - only the German version is relevant.

 

1.   Scope, form

(1)  These General Terms and Conditions (hereinafter: GTS) shall apply for all services (hereinafter also referred to as: Measures), which are carried out by us or by vicarious agents that we commission to carry out these services for our customers, including the fulfilment of warranty claims and/or guarantee claims from previous purchases of services relating to products (Goods). These GTS shall only apply if the Customer Contractor (Section 14 of the German Civil Code (BGB) is a legal entity under public law or a special fund under public law.

(2)  These GTS apply in particular for maintenance and repair services. Unless otherwise agreed the GTS will apply as a framework agreement in the version valid at the time of the placing of the order by the Customer or at least in the version that he has most recently been notified of for similar future contracts without any requirement on our part to repeat reference to them in an individual case.

(3)  Our General Terms of Service apply exclusively. Customer’s deviating, contradictory or supplementary General Terms and Conditions shall only form a part of the agreement when and insofar as we expressly consent to their validity. This requirement of consent applies in any event, for example even if we, being aware of the Customer's GTC complete the service without reservation.

(4)  Unless otherwise agreed or anything to the contrary is stated, our General Terms and Conditions shall apply in addition for sales, which are labelled accordingly in the internet on our website and are accessible at www.elried.de.

2.   Remuneration

Even if in this event the Customer does not wish to continue with the Measures by expressly placing an order, we can invoice the Customer for all work executed up to that point.

3.   Declaration and processing of warranties or guarantee claims

(1)  Should the Customer assert claims against us with respect to warranties and/or guarantees and these are based on the service order, he must clearly indicate this on the order and inform us of this. For this purpose the Customer must prove the existence of a purchase agreement and/or guarantee agreement to us, for example by presenting the order confirmation, the invoice and/or delivery note.

(2)  Should we determine prior to execution of the Measures that the warranty and/or guarantee claims do not exist, we shall inform the Customer of this, which we may also communicate by telephone. Should the Customer desire services in return for payment he must expressly instruct us of this.

(3)  If it is determined that existing defects and/or damages to the object to be repaired are not covered by the warranty and/or guarantee claims when the Measures are executed or when troubleshooting, we will also inform the Customer of this in accordance with the provision in No. 3 para. (2). Even if in this event the Customer does not wish to continue with the Measures by expressly placing an order, we can invoice the Customer for all work executed up to that point.

4.   Scope of work

(1)  The cost estimates we provide for the Customer prior to the placing of an order are always non-binding unless they have been expressly marked as binding.

(2)  The assignment by the Customer (e.g. by telephone, fax, email, etc.) is valid as a binding offer of contract, which requires written corresponding acceptance for conclusion of contract. Unless otherwise agreed in the assignment documentation, we are entitled to accept this offer of contract within 14 days of our receipt of it.

(3)  If the description provided by the Customer of the assigned services is insufficient or incorrect we shall also be entitled to carry out all necessary works to determine the necessary services.

(4)  In the case of orders that are not executed due to warranty claims and/or guarantee claims, we will not render any services if the anticipated costs significantly exceed the value of the impacted item. We will inform the Customer of this, possibly by telephone. The Customer shall bear the costs that we incur in all cases until and due to the uneconomical nature is determined.

5.   Order fulfilment

(1)  All appointments that we notify the Customer of for the execution of the services are non-binding. The actual duration required for execution of the services shall be solely determined by the actual amount of work required taking into account internal processing times, transport times, response times and reference times.

(2)  We are entitled to engage subcontractors and hand over the impacted Goods to such subcontractors for the execution of the order.

(3)  Orders shall be executed in compliance with the current state of the art of science and technology.

(4)  We are solely authorised to issue instructions to our employees and subcontractors that we commission to carry out work.

6.   Customer’s duty to cooperate

(1)  The Customer shall provide us with all of the information, materials, devices, documents, processes, etc. required to execute the order in a timely manner in advance. Where the services are not executed due to warranty and/or guarantee claims these shall be performed free of charge or the costs shall be borne by the Customer.

(2)  If we are employed by the Customer, the Customer must grant us, our employees and/or third parties commissioned by us access, during usual business hours and within operational rules of access, to the relevant spaces, installations (hardware, software, networks, etc.) and other work materials as required for us to properly render the services. Where necessary, the Customer shall also provide us, our employees and/or third parties commissioned by us with functional work spaces.

(3)  The Customer shall also cooperate with the execution of the order to the extent necessary by supporting us, our employees and/or third parties we have commissioned to the best of their ability.

(4)  Should the Customer fail to fulfil these incumbent obligations in accordance with No 6. or not fulfil them in a timely manner and this leads to delays and/or additional expenses, the agreed timeframes will be extended and/or the agreed remuneration will be increased accordingly.

7.   Compensation and terms of payment

(1)  Unless otherwise agreed in writing, the services will be calculated based on the legally binding and confirmed fixed price stated by us or on the basis of time and materials required upon completion or acceptance of the services.

(2)  Invoices are payable on receipt without deductions no later than upon return/delivery of the impacted items. Until full payment is made, we have the right to exercise our contractor’s right of lien.

(3)  The Customer shall bear all potential transport costs insofar as the services are not executed on the basis of warranty and/or guarantee claims. The same applies for potential packaging costs.

(4)  If the repair measures are not executed on the basis of warranty and/or guarantee claims, any transport of Goods shall be carried out solely at the Customer’s risk.

(5)  The Customer shall only be entitled to offset counterclaims if such claims have been legally established or are undisputed.

8.   Acceptance and collection

(1)  The services are to be formally accepted by the Customer. Immaterial discrepancies do not give the Customer the right to refuse delivery; the obligation to remedy defects within the scope of liability for warranties remains unaffected thereby.

(2)  Commissioning or productive use of the Goods or parts relating to the services shall be deemed as acceptance.

(3)  If the maintenance/repair measures are not executed on the basis of warranty and/or guarantee claims, the Customer shall also be obliged to collect the Goods no later than three weeks after notification of their completion, unless otherwise agreed, and send the Goods at the Customer’s expense. Upon expiry of this period the Customer is in default of acceptance.

(4)  In the event of default of acceptance, we are entitled to claim from the Customer for all damages we incur caused by the delay, in particular standing and storage costs. We are no longer obliged to continue to keep the Goods in our possession as soon as the standing or storage costs exceed the value of the Goods and this has been communicated to the Customer in advance.

9.   Warranty

(1)  In the case of faulty or defective services provided in return for payment, the Customer’s claim will initially be restricted to subsequent performance. In the event of a failed attempt at subsequent performance, we are entitled to attempt another subsequent performance if this is reasonable for the Customer. If the additional subsequent performance is also unsuccessful or if an additional attempt at subsequent performance is unreasonable for the Customer, the Customer can demand a reduction of the agreed remuneration or withdrawal from the contract.

(2)  Should the item for which the work order is to be executed be damaged by us, then we shall also be entitled to rebuild the item at our own expense. If it is impossible to rebuild the item or it is associated with disproportionately high costs in relation to the value of the item, then only the current value of the item can be reimbursed as at the time of the order being placed.

10. Liability

(1)  Unless otherwise stated in the following provisions of these GTS we shall be liable according to the relevant statutory regulations in case of a breach of contractual and non-contractual duties.

(2)  We shall be liable for damages, irrespective of the legal grounds, in the event of intent and gross negligence. In cases of minor negligence we are only liable, in accordance with the statutory provisions, subject to a more lenient standard of liability (e.g. for the diligence we exercise for our own affairs)

a)   for damages arising from injury to life, body and health,

b)   for damages resulting from not insignificant breach of a material contractual obligation (an obligation, fulfilment of which makes the proper execution of the contact possible and the observance of which the contracting party relies on, and may rely on, regularly); in this event our liability is however restricted to foreseeable and typically occurring damage.

(3)  The limitations of liability arising from para. 2 shall also apply in the event of infringement of obligations by or assist persons whose culpability can be attributed to us in accordance with the statutory provisions.

11. Termination

(1)  Unless otherwise agreed in the individual case, agreements can be terminated at any time with a notice period of 30 days to the end of the year. In the event that the notice of termination is not observed, the agreement shall automatically be extended by a year.

(2)  Termination for good cause is possible at any time.

(3)  In those cases of termination under paras. 1 and 2 the Customer shall pay the remuneration minus that part of the remuneration for the agreed-upon scope of services, which was saved by the termination. We are also entitled to claim for remuneration for the services and expenses incurred in connection with the termination - including those in relation to third parties.

(4)  If the termination is caused by reasons for which we are responsible, we shall have the right to claim for remuneration for services which we have already rendered only if these are useful to the Customer.

(5)  Termination must always be made in writing.

12. Data protection

We take the protection of personal data very seriously, in particular in accordance with the provisions of the GDPR and Federal Data Protection Act. Specific details and information in this respect are listed on our website under the “Data protection” menu within the privacy statement which can be retrieved there.

13. Governing law and jurisdiction, final provisions

(1)  For these GTS and all legal relationships between us and the Customer the law of the Federal Republic of Germany will apply.

(2)  If the Customer is a merchant within the meaning of the German Commercial Code, a legal entity under public law or a separate property under public law, the exclusive, including international, place of jurisdiction for all disputes arising directly or indirectly as a result of this contract is Munich. The same applies if the Customer is a Contractor within the meaning of Section 14 BGB.

(3)  To the extent that the contract or these GTS contain loopholes in the arrangements, it is agreed that the legally valid provisions that would have governed the parts of the contract by applying the economic objectives of the contract and the purpose of these GTS, had they been aware of these loopholes in arrangements, shall apply to close these loopholes.

(4)  These GTS are drafted in both German and English. In the event of contradictions or interpretative problems only the German version of these GTS will be definitive. Translations are not legally binding.

Last updated: 01/01/2019