General Service Terms and Conditions
MEIKO Maschinenbau GmbH & Co KG
Section 1 Area of application
(1) These Service Terms and Conditions (STCs) are definitive for all contracts for performance of repair and maintenance work. The STCs apply only if the Customer is a company (Section 14 German Civil Code), a domestic or foreign corporate body under public law or a special fund under public law.
(2) The STCs also apply in their respective version as a framework agreement for future contracts for performance of repair and maintenance work with the same Customer, without the need for us to refer to them in each individual case.
(3) Our STCs apply exclusively. Deviating, opposing or supplementary purchasing conditions and/or general terms and conditions of business of the Customer are part of the contract only and insofar as we have expressly agreed to their applicability in writing. This approval requirement applies in every case, for example, even when we carry out the delivery or repair without reservation while knowing of the Customer's terms and conditions.
Section 2 Offers and conclusion of contract
Our offers are non-binding and may be modified or withdrawn at any time. The Customer's ordering of the repair and maintenance work is considered a binding offer of contract. Unless otherwise specified in the order, we are entitled to accept this offer of contract within 2 weeks of receipt. Acceptance can either be declared in writing (e.g. through order confirmation) or through performance of the repair and maintenance work.
Section 3 Content of the contract
(1) The contract concluded in writing, including these STCs, is solely definitive for the legal relationships between us and the Customer. It completely describes all agreements between the contractual parties on the subject of the contract. Oral promises on our part made before this contract is signed are not legally binding and are valid only if they are confirmed in writing when the contract is signed.
(2) Our indications about the subject of the performance (e.g. weights, dimensions, values in use, load capacity, tolerances and technical data) as well as our depictions of these (e.g. drawings and figures) are only approximately definitive unless use for the contractually intended purpose requires exact correspondence. Deviations that are customary in the trade, deviations that result from legal regulations or represent technical improvements and replacement of components through parts of equal value are permitted if they do not impair usability for the contractually intended purpose.
Section 4 Duties of the Customer with repair and maintenance contracts
The location of the repair or maintenance service must be freely accessible at the agreed time. The Customer bears the costs that result from any hindrances. The Customer or an authorised representative is available as a contact person for the period during which the repair or maintenance work is performed. The Customer shall take all measures necessary to protect people and material at the location and will inform our service technicians about all existing safety regulations that are significant for their work. The Customer is responsible for the monitoring of and compliance with safety regulations. If approvals by third parties are required for performance of repair or maintenance work, the Customer will obtain them before the services assigned to us are begun.
Section 5 Prices for repairs and maintenance work; payment
(1)a) The prices for repairs are broken down as follows:
- Base flat rate depending on the distance (km, area)
- Rate per hour
- Spare part costs
- Additional charges for work done outside normal working hours
- Additional expenditure at the request of the Customer
The amount results from the contract agreed with the Customer.
b)The prices for maintenance work apply as agreed. If not expressly excluded, the cost rates named under a) apply in addition.
(2) Invoicing is in euros. Applicable are the prices in our price lists that are valid when the contract is agreed, in particular our replacement parts list.
(3) Fundamentally, all prices are net and without deduction, e.g. of prompt payment discount, within the agreed payment period.Unless agreed otherwise in writing, all payments are due within 10 days of the invoice date. The Customer is in arrears not later than the above due date.
(4) We are entitled to perform deliveries or services which are still outstanding only in return for prepayment or security provisions if, after signing of the contract, we become aware of circumstances that materially impair the creditworthiness of the Customer. If the Customer fails to provide the prepayment or security within a suitable time set by us, we can withdraw from the contract and demand payment for damages for breach of contract.
(5) The Customer is entitled to assert offset or lien rights only to the extent that its claim has been established as legally binding or is uncontested. In case of defects in delivery, Section 8 par. 4 remains unaffected.
Section 6 Place of performance, transfer of risk, insurance costs
(1) The place of performance for all obligations from the contractual relationship is 77652 Offenburg, if not determined otherwise.
Goods are delivered EXW in accordance with INCOTERMS 2010, unless otherwise agreed.
(2) The risk of accidental loss or accidental deterioration of the product passes to the Customer no later than with the transfer thereof. The same consequences arise if the Customer is in default in accepting delivery. In the case of sale by dispatch, the risk of accidental loss or deterioration of the product and the risk of delay takes place when MEIKO has informed the Customer in writing of its readiness to ship, but not later than with delivery of the product to the person charged with execution of shipment. The same applies to partial deliveries.
(3) MEIKO will insure the shipment against breakage, transportation, fire and water damage at the Customer's expense, for which 0.5% of the invoice amount is charged.
Section 7 Time period for performing the repair and maintenance work
(1) The deadline will be individually agreed or specified by us when we accept the order.
(2) The legal regulations determine when we are in default. But in all cases, a reminder by the Customer is required. We are not liable for impossibility of performance or delays in performance caused by force majeure or other events not foreseeable when the contract was signed (e.g. operational problems of all kinds, difficulties procuring materials or energy, transportation delays, strikes, shortages of labour, energy or raw materials, failure by government officials to grant required approvals or difficulties in obtaining them, in particular export approvals, official measures, or failure to deliver, late delivery or incorrect delivery by suppliers) and which are beyond our control.
(3) If we cannot meet established deadlines for reasons beyond our control (unavailability of the service), we will inform the Customer of this without delay and simultaneously specify the expected new date of performance. If we cannot perform the service by this date as well, we are entitled to withdraw from the contract in whole or in part; we will immediately return any consideration provided by the Customer. Our legal rights to withdraw from the contract as well as the legal regulations on winding up the contract if the duty of performance is eliminated (e.g. impossibility or unconscionability of the service and/or subsequent performance) remain unaffected. The Customer's rights to withdraw from the contract in accordance with Section 8 of these STCs also remain unaffected.
(4) If the buyer is delayed in receiving shipments, fails to provide required assistance, or our delivery is delayed for other reasons under the Customer's control, we are entitled to demand compensation for the resulting damages, including additional expenses, and in particular storage costs. For this delay, we charge a standard compensation fee of 0.5% of the invoice amount per week / month, starting one month after we announce our readiness to ship the product. Proof of greater damages and our legal claims (in particular, compensation for additional expenses, appropriate compensation, termination) remain unaffected; but the standard compensation fee is offset against any further monetary claims. The Customer is permitted to prove that we have sustained no damages, or lower damages than the above standard compensation fee.
Section 8 Liability for defects
(1) The statutory definition of defect applies for repair and maintenance contracts. Replacement parts become our property.
(2) Defects arising after repair and maintenance work must be reported to us in writing without delay, along with a detailed description of the defect claimed. The report is considered timely if given within 5 working days, whereby timely sending of the report is sufficient to comply with the deadline.
(3) If the Customer fails to ensure proper examination and/or notification of a defect, our liability for this unreported defect is excluded.
(4) If we receive timely notification of a defect for which we are responsible, we can choose to satisfy the Customer's claim for remedy either through repair (elimination of defect) or replacement. In particular, we are not responsible for defects caused by the Customer through carelessness, improper handling, excessive use or failure to perform the prescribed maintenance, care and cleaning work. Further, we are not liable if the device was placed into operation or serviced by the Customer or a company not authorised by us before we perform the assigned repair and maintenance work or if the Customer installed parts not approved by us. If only a temporary repair was performed with the Customer's agreement, we are not liable for defects in our performance that go beyond the temporary nature.
(5) We are entitled to make the required subsequent performance dependent on payment by the Customer of the amount due. However, the Customer is entitled to withhold a part of the amount due that is appropriate in relation to the defect.
(6) We bear the costs required for inspection and remedy, in particular for transportation, travel, labour and materials, if a defect does in fact exist. However, if the Customer's demand to remedy the defect turns out to be unjustified, we can demand that the Customer reimburses the costs incurred as a result.
(7) Claims of the Customer for damages or reimbursement of ineffective expenses can only be made in accordance with Section 9 and are otherwise excluded.
Section 9 Other liability
(1) Unless otherwise determined in these STCs, including the following provisions, we are liable for breach of contractual and non-contractual obligations in accordance with the relevant legal regulations.
(2) We are liable for damages – regardless of the legal grounds – if intentional or due to gross negligence. In the event of simple negligence, we are liable only a) for damages arising from injury to life, body or health, b) for damages from the breach of a material contractual obligation (an obligation whose fulfilment is essential for proper performance of the contract and on the fulfilment of which the other party normally relies and may rely); in this case, however, our liability is limited to compensation for the foreseeable, typical damage.
(3) The limitations of liability resulting from par. 2 do not apply if a defect is fraudulently concealed or a guarantee for the property of the product was accepted. The limitations of liability as defined in par. (2) also do not apply for claims of the Customer under product liability law.
(4) The Customer can withdraw from the contract due to a breach of obligation other than a defect only if we are responsible for breaching the obligation. Otherwise, the legal prerequisites and consequences apply.
(5) These exclusions and limitations of liability apply to the same extent for our managers, workers, employees, representatives and agents.
Section 10 Limitation of actions
Other than specified in Section 634a par. 1 no. 1 of the German Civil Code (BGB), the general limitation of action for claims due to material and legal defects is 1 year from the time risk is transferred or the time of acceptance, unless a case under Section 634a par. 1 no. 2 BGB is applicable. These limitations of action apply also for contractual and non-contractual damage claims by the Customer resulting from a defect in the product, unless application of the regular statutory limitation of action (Sections 195 and 199 BGB) would result in a shorter limitation of action in the individual case. The limitations of action under the product liability law remain unaffected in any case. Otherwise, the statutory limitations of action for damage claims by the Customer under Section 9 apply exclusively.
Section 11 Retention of title
(1) The delivered product (goods subject to retention of title) remains the property of MEIKO until fulfilment of all claims that MEIKO has against the Customer, now or in future. If the Customer acts in breach of contract – in particular, if it is in arrears with payment of an invoice – MEIKO has the right to take back the goods subject to retention of title after setting an appropriate deadline for payment. The Customer bears the transportation charges for the return. If MEIKO takes back the goods subject to retention of title or seizes them, this represents a withdrawal from the contract. MEIKO may sell the goods subject to retention of title that MEIKO takes back. The proceeds of the sale will be offset against the amounts that the Customer owes MEIKO after MEIKO deducts an appropriate amount for the costs of the sale.
(2) The Customer must insure the goods subject to retention of title at the Customer's own expense, for their value as new goods against fire and water damage as well as theft.
(3) The Customer may use the goods subject to retention of title and sell them in the normal course of business as long as it is not in arrears in payment. However, it must not pledge the goods subject to retention of title or transfer them to others as security. The Customer even now assigns to MEIKO as security in its full amount the claims against its Customer from sale of the goods subject to retention of title as well as those claims of the Customer regarding the goods subject to retention of title against its Customers or third parties arising under a different legal basis (in particular claims from torts and from insurance), including all balances owed from trade credit. MEIKO accepts this assignment.
The Customer may collect these assigned claims at its own cost and in its own name for MEIKO, as long as MEIKO does not revoke this authorisation. This does not impair MEIKO's right to collect these claims itself; but MEIKO will not assert the claims itself and will not revoke the collection authorisation as long as the Customer properly meets its payment obligations. However, if the Customer acts in breach of contract – in particular, if it is in arrears with payment of a claim – MEIKO can demand from the Customer that it will reveal the assigned payment claims and the respective debtors, inform the respective debtors of the claim assignment, and give MEIKO all documents and provide all information that MEIKO requires to assert the claim.
(4) Processing or transformation of the goods subject to retention of title by the Customer is always performed for MEIKO. If the goods subject to retention of title are processed together with other items not belonging to MEIKO, MEIKO acquires co-ownership of the new goods in the ratio of the value of the goods subject to retention of title (final invoice amount, incl. sales tax) to the value of the other processed items at the time of processing. Otherwise, the same applies to the new goods arising from the processing as for the goods subject to retention of title.
If the goods subject to retention of title are joined inseparably or mixed together with other items not belonging to MEIKO, MEIKO acquires co-ownership of the new goods in the ratio of the value of the goods subject to retention of title (final invoice amount, including sales tax) to the value of the other joined or mixed items at the time of joining or mixing. If the goods subject to retention of title are joined or mixed in such a way that the Customer's item is the main item, the Customer and we agree even now that the Customer transfers co-ownership of this item to us proportionately. MEIKO accepts this transfer.
The Customer will safely maintain for MEIKO the resulting sole ownership or co-ownership of the item.
(5) In case of seizure of the goods subject to retention of title by a third party or other interventions by third parties, the Customer must announce the ownership of MEIKO without delay and in writing so that MEIKO can enforce its property rights. If the third party is unable to reimburse MEIKO for the court or out-of-court costs arising in this context, the Customer will be liable for this.
(6) If the Customer demands it, MEIKO is required to release the security to which MEIKO is entitled to the extent that its realisable value exceeds by more than 10% the value of open claims by MEIKO against the Customer. However, MEIKO may select the security to be released.
Section 12 Final provisions
The applicable law for these STCs and all legal relationships between us and the Customer is the law of the Federal Republic of Germany. Sole jurisdiction for all disputes resulting directly or indirectly from the contractual relations is with the court responsible for Offenburg. But we are also entitled to assert claims with the court of jurisdiction at the Customer's location.
Note on data protection: Data from the contractual relationship is stored in accordance with Section 28 of the German Federal Data Protection Act for the purpose of data processing; we reserve the right to transfer the data to third parties if required for contract fulfilment.
Version August 2019