General Terms and Conditions GOHR-SPS
PART 1: GENERAL
1. Parties, scope
1.1. These General Terms and Conditions of Gohr-SPS, Montrealstr.1, 91074 Herzogenaurach - afterword “Gohr SPS ” – shall apply to the agreement with the Client, which they are incorporated in by reference.
1.2. These General Terms and Conditions – in the version that is current at the time – shall furthermore apply to all subsequent agreements with the Client on goods and services listed in sect. 3 without need for renewed incorporation.
1.3. All goods and services offered by GOHR-SPS are exclusively aimed at entrepreneurs. GOHR-SPS reserves the right to verify Client’s status as entrepreneur and decline requests by consumers.
1.4. These General Terms and Conditions shall govern the agreement exclusively. Client’s terms and conditions shall not become part of the agreement, regardless of GOHR-SPS’ knowledge of such terms and conditions, unless GOHR-SPS expressly accepts their incorporation in writing.
1.5. The current version of these Terms and Conditions shall be available for viewing and download on GOHR-SPS’ websites. Upon request, GOHR-SPS shall make these terms and conditions available to Client in text form.
2. Contractual Documents, Conclusion of the agreement, Amendments
2.1. The agreement between GOHR-SPS and the Client shall incorporate the following documents (in descending order of application): a) the order form, b) the technical specifications document, c) the product description and feature-list, d) these General Terms and Conditions (Parts 14), and e) GOHR-SPS’ standard pricelists. In case of ambiguity or inconsistency, the provisions of the higher ranking document shall prevail.
2.2. Binding offers of GOHR-SPS must be accepted by Client within five (5) work days, unless a different term is specified in the offer. Later acceptance or amendment constitutes a new offer by Client.
2.3. A cost estimate or quotation by GOHR-SPS does not represent a contractual offer in a legal sense but an invitation to the Client to submit a contractual offer.
2.4. Within five (5) work days GOHR-SPS will accept the offer usually by order confirmation, at least in text form. GOHR-SPS may as well accept the order in another form, e. g. orally or by service provision.
2.5. The agreement may be concluded in the following languages: German, English. In case of doubt or ambiguity of the interpretation of the agreement, the German language version shall be legally binding.
3. Goods and Services, General Rights and Obligations of GOHR-SPS
3.1. GOHR-SPS primarily offers the following services: a) consulting, in particular on technically correct initial start-up, start-up after interruption, recovery and retrofitting of industrial machinery, b) repair, overhaul, maintenance, cleaning and functional testing of industrial machinery, including after end of manufacturer support period, c) assembly and disassembly of parts and modules,d) sale of new and refurbished replacement parts, and e) purchase or trade-in (e.g. as part of an exchange) of defective machine parts.
3.2. For services according to sect. 3.1.a), the provisions of Part 2 of these Terms and Conditions shall apply primarily, for services according to sect. 3.1.b) and 3.1.c) the additional provisions of Part 3, and for services according to sect. 3.1.d) and 3.1.e) those of Part 4.
3.3. Scope of services and functionality is determined by the content of the order form, the technical specifications document, and the specifications in Parts 2-4 of these Terms and Conditions. Insofar as the aforementioned documents do not contain specific provisions, the following sections shall apply.
3.4. GOHR-SPS shall deliver all goods and services with due care and in accordance with established and accepted market standards. GOHR-SPS shall thus employ personnel with sufficient expertise.
3.5. The suitability of GOHR-SPS goods or services for a specific purpose shall only become part of the agreed quality if GOHR-SPS expressly covenants or confirms such quality in text form.
3.6. Work is performed at GOHR-SPS’ to the extent possible, and at the Client’s only to the extent necessary. While working at the Client’s, the personnel commissioned by GOHR-SPS shall comply with the Client-specific security and work regulations explicitly indicated to them in detail. Unless otherwise agreed upon, all travels to Client’s place of business are charged separately.
3.7. In the course of performance GOHR-SPS will also consider the Client’s material, non-material and organisational situation to a reasonable extent, insofar as they have been disclosed by the Client. Nonetheless, GOHR-SPS shall at all times be free to select and commission personnel, the methods and the technical implementation in order to achieve the agreed results.
3.8. GOHR-SPS shall have the right to deliver partial performance. However, Client may reject partial performance if and insofar as it is by itself unusable.
4. Client‘s Duties and Obligations
4.1. Client shall fulfil his general cooperation obligations to the extent necessary, in particular a) Client shall grant employees or representatives of GOHR-SPS access to his business premises and shall instruct them on applicable nondisclosure, security and worksafety regulations, b) Client shall provide work spaces equipped as necessary and necessary access to systems and resources if works are performed on Client’s premises, c) Client shall name a responsible representative with sufficient authority to make decisions for the coordination of GOHR-SPS’ performance, and d) Client shall provide information on machines, machine parts, their environment and usage scenario, firm- and software including release versions, and their respective allocation and configuration.
4.2. Client shall make regular backups of data to the extent and in intervals appropriate to the data’s respective need for protection. Client shall ensure that a current and complete backup is made prior to any works of GOHR-SPS on Client’s systems processing real data in a production environment.
4.3. The foregoing shall apply in particular to all parameters and configuration setting stored in machine parts that are serviced or replaced by GOHR-SPS, because any testing of a machine part usually requires a complete deletion of all stored data.
4.4. Client shall inform GOHR-SPS in time about any changes to hardware, infrastructure, software, and their respective configuration, insofar as such changes may affect GOHR-SPS’ performance.
4.5. Client shall carefully review all assumptions that are marked as such, and bases expected by GOHR-SPS for its performance for their accuracy, at the least for their plausibility. Client shall inform GOHR-SPS without undue delay about any divergence or errors. This shall apply especially for quantities and use cases, on which GOHR-SPS’ performance is based.
4.6. Client shall ensure that any third party software protected under copyright that is used by GOHR-SPS’ employees or representatives on the Client’s premises or at Client’s behest is sufficiently licensed. This shall apply equally to other materials protected under copyright or other intellectual property right.
4.7. Further obligations according to Parts 2-4 of these Terms and Conditions shall remain unaffected.
5. Implied placing of order
5.1. If machine parts are delivered to GOHR-SPS by the Client in the course of an ongoing business relationship and without any prior order or other instructions stated in the accompanying delivery documents, GOHR-SPS will assume an implied order to carry out a repair and general overhaul, as is usually performed for the type of machine part.
5.2. This shall not apply – and GOHR-SPS will request a decision from the Client in advance in this case – if an implied ordering or the specific type of machine part delivered is so unusual for the Client that a mistake by the Client is obvious. by third parties shall have the right to commission any or all performances to third parties (e.g. subcontractors). The Client shall have the right to object to commissioning to a specific third party if sufficient evidence raises serious doubts about the third party’s reliability, capability or expertise.
7. Payment Terms
7.1. The Client shall pay the agreed consideration, or if no consideration was expressly agreed upon, the fees for goods and services rendered as set forth in GOHR-SPS’ standard pricelists current at the time of formation of the agreement.
7.2. All prices are net prices and do not include value added tax at the applicable rate.
7.3. All prices apply to performance at GOHR-SPS’ place of business, unless otherwise agreed. Failing special agreement, prices for delivery of hardware are for delivery EXW (“ex works” under incoterms 2010) from the supplier’s place of business.
7.4. Cost of materials, e.g. precautionary replacement of wearing parts, shall be compensated separately – even if a fixed price for work is agreed – unless otherwise agreed expressly with regard to cost of materials.
7.5. Client’s payment shall be due immediately and be made until the agreed payment date, otherwise within 14 calendar days from receipt of invoice. Payments recurring monthly, quarterly or yearly shall be due on the 1st and made in advance until the 10th calendar day of the respective month, quarter or year.
7.6. The Client shall only be entitled to any cash discounts or other deductions if expressly otherwise agreed at least in textform.
7.7. Travel costs and expenses shall be compensated as agreed upon. Failing special agreement, distances travelled by car shall be compensated at a rate of 0.30 EURO per kilometre, costs for other means of transportation and other expenses shall be reimbursed fully as incurred.
8. Billing and Record of Performance
8.1. All work, for which no other payment terms, e.g. fixed price, is agreed is billed on the clock. The payment amount is determined by the rates set in GOHR-SPS’ general price list, unless otherwise agreed.
8.2. For all work billed on the clock, GOHR-SPS will provide monthly records of performance to the Client in the agreed form, or failing special agreement in the form commonly used by GOHR-SPS.
8.3. Client shall sign off and return the provided records of performance as correct within five (5) business days, or shall object in text form. Records of performance shall be deemed to have been accepted as correct if objections against their accuracy are raised within five (5) business days in text form.
9. Date of Performance, Default
9.1. Client is in default without the necessity for an additional reminder notice if he fails to make payment until the agreed date, otherwise within 14 calendar days of receipt of invoice.
9.2. If Client is in default, the legal consequences of default afforded by law shall apply; in particular, an interest rate of nine (9) percentage points above the base rate is accrued on outstanding amounts.
9.3. All delivery or performance periods stated by GOHR-SPS are to be counted from the date of receipt (e.g. bank transfer) or confirmation of payment by the payment processor (e.g. PayPal or credit-card payment). Receipt of payment may vary for specific payment methods agreed upon or used, e.g. due to processing time for bank transfer. For the purpose of calculation of the performance period, receipt of payment shall be deemed to be made immediately upon conclusion of the agreement in case of payment on invoice.
9.4. GOHR-SPS is in default if GOHR-SPS culpably fails to meet a binding delivery date. If a delivery date is expressly marked as non-binding, GOHR-SPS shall only be in default after expiry of a further reasonable deadline for delivery set by the Client, whereas such deadline shall usually be considered reasonable if it is set no earlier than 14 calendar days after the planned delivery date.
9.5. If GOHR-SPS is in default, the legal consequences afforded by law shall apply, unless GOHR-SPS is not responsible for the default. In particular, GOHR-SPS shall not be in default if delivery dates are delayed due to Client failing to fully fulfil his information and participation obligations.
10. Term of the contract, Termination
10.1. The agreement shall end either upon complete fulfilment of contractual obligations or on the agreed end date. An agreement entered into for an indefinite length of time, notwithstanding any agreed minimum duration, shall end by termination.
10.2. If the agreement is made for an indefinite length of time and unless otherwise agreed, each Party may terminate the agreement with 4 weeks’ notice, however not prior to the end of the agreed minimum contract duration.
10.3. Other rights of termination under Parts 2-4 of these Terms and Conditions, and the right of termination for cause remain unaffected.
11. Force Majeure
11.1. GOHR-SPS is not liable for events of force majeure that materially complicate the contractual performance, or temporarily obstruct or make the proper fulfilment of the agreement impossible. Force majeure means all circumstances independent from the parties' intention and control, such as natural catastrophes, measures by government, decisions of the authorities, blockade, war and other military conflict, mobilisation, civil commotion, terrorist attacks, strike, lockout and other industrial unrest, expropriation, embargo or other unpredictable serious circumstances beyond the parties' control and occurring after the conclusion of this contract.
11.2. After the occurrence of the event of Force Majeure, GOHR-SPS shall inform Client without delay in text form about the nature of the event, the time, the date of the event, and the likely effects of the event on GOHR-SPS’ ability to fulfil its contractual obligations, such as delays of performance.
11.3. After the termination of the event of Force Majeure, GOHR-SPS shall inform Client without delay about this termination and resume the fulfilment of its obligations.
11.4. GOHR-SPS shall do everything within its power that may be necessary and reasonable to reduce the extent of the delay or the non-fulfilment and their consequences resulting from Force Majeure. This also applies if the reason for the delay or the non-fulfilment is not in its own sphere of responsibility. Further costs resulting therefrom shall be borne by the contractual party in whose sphere of responsibility the reason is based.
12. Third Party Rights, Indemnification
12.1. Each Party represents and warrants that no third party rights, no applicable law, and no order of a competent authority are infringed on by or in connection with the performance under this agreement, the use of deliverables, or the fulfilment of information or cooperation obligations. Whereas, this shall apply only to such infringements that impede or bar the contractual use.
12.2. Each Party shall indemnify and hold the other Party harmless from claims based on infringement of third party rights, applicable law or orders of competent authorities upon first demand. This indemnification shall include assumption of all costs and expenses, including reasonable costs of enforcement of or defence against legal claims, which arise to the indemnified party in connection with the third party claim. The foregoing shall not apply if the indemnifying party provides sufficient evidence that it did not culpably violate the duty, upon which the third party claim is based.
13. Confidentiality and non-disclosure
13.1. Both Parties commit to keep confidential information of the other Party secret and not to use such information for own or third party purposes, unless such use is required to meet the purpose of the agreement. Such non-disclosure includes the obligation to take protective measures against unauthorised access of third parties, whereas such measures shall be appropriate for required level of protection of the respective information.
13.1.1. Confidential information shall mean all information, a) that is expressly marked or referred to as confidential, b) that is protected information according to sect. 17, 18 of the German Unfair Competition Act (UWG), such as know-how, or c) for which the disclosing Party’s interest in secrecy arises from the nature of the information. For information stored on any medium, the confidentiality requirement shall apply to the medium as well.
13.1.2. Confidential information shall not include information a) known to the public, b) that become known to the receiving Party exclusively due to its own research and development, c) for which the disclosing Party has waived all non-disclosure requirements in writing, or d) that become known to the receiving Party by other means than from the disclosing Party without any breach of confidentiality.
13.3. All documents provided to GOHR-SPS by the Client under this agreement shall remain the property of the Client and shall be returned to the Client upon request including all duplicates, or destroyed. Data stored on electronic media that cannot be returned shall be securely deleted or otherwise made unusable by GOHR-SPS.
13.4. The obligations of this sect. 13 shall remain in force indefinitely after the end of this agreement, unless otherwise agreed.
14. Publications; Press
14.1. Publications, public statements or press releases of one party containing company name, logo or depiction of trade mark of the other party shall be coordinated with the other party prior to release.
14.2. If such release of a party will contain factual claims regarding the other party’s shortcomings or transgressions, the other party shall be given reasonable opportunity for remediation prior to release.
15. Rights in Case of Defects
Unless otherwise agreed, particularly in Parts 2-4 of these Terms and Conditions, the statutory rights in case of defects for the respective contract type underlying GOHR-SPS’ performance shall apply.
16.1. Parties are liable towards each other under the statutory legal provisions insofar as the other party raises claims for damages based on a wilful act or gross negligence, including a wilful act or gross negligence of representatives or agents.
16.2. In case of claims against GOHR-SPS based on negligent breach of a principal contractual obligation, the fulfilment of which is essential for proper execution of the contract, and the breach of which jeopardises reaching the contractual object, and on observance of which the Client may duly rely, GOHR-SPS' liability in damages will be limited to the predictable, typically occurring damages.
16.3. Liability for culpable loss of life, bodily injury, or impaired health remains unaffected
16.4. Liability under the Product Liability Act shall remain unaffected
16.5. In all other cases, liability of GOHR-SPS towards Client is excluded.
17. Rights to Set-Off and Rights of Retention
17.1. Client’s rights to set-off are excluded. This does not apply insofar as his counterclaim is based on a breach of a major obligation of GOHR-SPS as provided for in sect. 320 German Civil Code (BGB) or if the counterclaim is finally adjudicated or undisputed.
17.2. Client has a right to retention only insofar as his counterclaim is connected to or arising from the same transaction and is finally adjudicated or undisputed. Apart from that, Client has no right to retention.
Any assignment of Client’s rights and obligations under this agreement in their entirety to a third party shall be subject to GOHR-SPS’ prior written consent. GOHR-SPS may freely assign its rights and obligations under this agreement to an affiliate company within the meaning of sect. 15 of the German Stock Corporation Act
19. Written Form
19.1. Any amendments, addendums and the annulment of this agreement must be in writing in order to be effective. This also applies for amendments of this written form clause. The aforementioned requirement of written form shall not apply to oral agreements made after the conclusion of this contract. In this case, the parties also agree on the necessity of a written confirmation concerning the content of the oral agreement.
20.1. The contractual relationship between the parties shall be governed by German Law excluding UN Sales law (CISG).
20.2. If Client is a merchant pursuant to the German Commercial Code, a government entity or special governmental estate, Frankfurt am Main shall be exclusive – also international –place of jurisdiction for all disputes arising out of or in connection with the agreement between GOHR-SPS and the Client. GOHR-SPS shall nonetheless be entitled to file claims at Client’s place of business.
PART 2: SERVICES
1.1. GOHR-SPS performs all consulting work based on information collected by GOHR-SPS from the Client, or information communicated by the Client.
1.2. GOHR-SPS shall be liable for accuracy and adequacy of consulting work only insofar as such work is based on information and facts collected by GOHR-SPS itself. In case of doubt, GOHR-SPS shall not be obliged to verify the accuracy or plausibility of information and plans communicated by the Client.
2. Functional testing
2.1. Either by Client’s separate order or prior to repair or purchase of a defective machine part, GOHR-SPS performs a standardized test of the functionality and the general condition of the machine part (“functional test”).
2.2. The functional test is limited to a predefined scope of testing, based on manufacturer specifications. GOHR-SPS shall make available to the Client upon request the scope of testing applicable to the respective machine part. The predefined scope of testing may not reliably allow detection of every possible error, especially if errors are either obscured by symptoms of other errors or caused by interaction with other faulty machine parts.
2.3. The execution of a functional testing shall be reimbursed at a flat-rate by the Client according to GOHR-SPS’ general pricelist. GOHR-SPS will waive the fees for the functional testing if a repair contract or sale of a spare part is concluded and carried out completely in relation to the tested machine part.
2.4. Any testing or troubleshooting beyond the standardized tests must be explicitly agreed and, in any case, compensated separately based on effort. Unless otherwise agreed on the compensation, GOHR-SPS’ general price list shall apply.
2.5. The Client is obliged to deliver the machine part at his own risk and expense to GOHR-SPS’ place of business or to the place specified by GOHR-SPS. The Client is in particular responsible for a proper transport packaging, transport locks and insurance of the machine part.
2.6. The execution of the functional testing usually requires a complete purge of the software and data stored in the machine part. GOHR-SPS will usually try to create a backup of the data and retransfer it after completion of the work. However, it is the Client’s duty alone to have a completely backup of the software and data stored in the machine part and to document all settings and parameters as well as check the correctness of the software, data, settings and parameters before putting the machine back in operation.
2.7. If there is also personal data stored on the machine part, the Client will expressly point this out to GOHR-SPS. GOHR-SPS will enter into a suitable data processing agreement upon the Client’s request.
3. Project Management
3.1. In case GOHR-SPS agrees to provide project management services, GOHR-SPS shall perform the agreed activities to control and coordinate the project. Nonetheless, the responsibility for the success of the project as a whole shall remain vested in the Client.
3.2. Within the scope of the agreed control and coordination of the project, GOHR-SPS will inform the Client about the steps necessary or appropriate for the success of the project. GOHR-SPS will work towards implementation of such necessary or appropriate steps within the boundaries of its agreed power.
3.3. GOHR-SPS shall, however, not be required to call for or to enforce such steps, which are to be implemented by the Client or a third party, beyond the agreed escalation mechanisms.
3.4. Consideration for project management services shall accrue based on effort in all cases. Any total amounts communicated to the Client shall be deemed nonbinding estimates of the foreseeable effort. GOHR-SPS shall inform the Client in a timely manner if during the course of the project it should become apparent that the estimated effort will be exceeded by more than 15%.
4. Rights in Work Results
4.1. Client shall have the right to use all work results created by GOHR-SPS, especially plans, concepts, presentations or analyses, for the purposes assumed under this contract and any own business purposes of the Client.
4.2. Client shall have the right to publish or pass work results created by GOHR-SPS on to third parties only if and insofar as expressly agreed, or if only non-confidential information within the meaning of sect. 13.1.2 of Part 1 is concerned.
4.3. GOHR-SPS shall have the right to use the work results without limitation for its own business purposes, and for other clients, as long as adequate measures are taken to avoid the possibility of any conclusion as to the identity of Client, the systems and configuration used by Client, or Client’s confidential information. Any agreement to limit GOHR-SPS’ use of work results shall be valid only if made in writing.
5. No Limitation of Competition
The performance of any work by GOHR-SPS for the Client shall not limit GOHR-SPS in any way to perform similar work for any third party, including competitors of Client. Sect. 4.3 of this Part and sect. 13 of Part 1 shall remain unaffected. Any agreement to the contrary shall be valid only if made in writing.
6. Further Payment Terms
6.1. GOHR-SPS shall have the right to demand reasonable advance payments.
7. Rights in Case of Misperformance (Warranty)
The statutory warranty shall apply, providing that GOHR-SPS shall be free to determine the place and time of work, unless individually agreed otherwise.
PART 3: SPECIFIC WORKS
1. Setup, Installation and Repair
1.1. If the agreement includes setup of machinery, installation of hardware and/or software or repair of machine parts, GOHR-SPS undertakes to perform such work in accordance with the order and – if applicable – the provisions of the technical specifications document.
1.2. The specified works are generally performed in accordance with procedures, guidelines and work instructions set by GOHR-SPS based on manufacturer recommendations. In case of deviations from those upon Client’s request, GOHR-SPS performs its work without regard to suitability or adequacy for the Client’s requirements. GOHR-SPS will inform the Client without undue delay if and insofar as any unfeasibility of the work due to Client’s request for deviation should become apparent. In such case, GOHR-SPS will await the Client’s decision on how to proceed with the unfeasible part of the work.
2. Cost estimate, Quotation
2.1. Indications of effort or prices given by GOHR-SPS without a prior functional test of the machine part are nonbinding cost estimates reflecting average expected effort based on prior experience. Cost estimations without a prior functional test are free of charge.
2.2. Indications of effort or prices given by GOHR-SPS based on the results of a functional test of the machine part are non-binding quotations within the meaning of sect. 650 BGB, unless a fee is expressly marked as “fixed” or “flat”. The functional test to be performed is subject to the provisions of sect. 2 of Part 2. The functional test is subject to separate fees under sect.
2.3 of Part 2 if such fees were expressly pointed out.
2.3. GOHR-SPS shall inform the Client without undue delay if it becomes evident that actual costs will substantially exceed the quotation.
3.1. If after receipt of a defective machine part GOHR-SPS determines that it is irreparably damaged or a repair would be economically unreasonable, GOHR-SPS shall inform the Client without undue delay.
3.2. By Client’s choice, GOHR-SPS will either return the machine part to the Client at Client’s expense, or properly dispose of it, utilizing its components and parts.
3.3. Disposal is free of charge, albeit the Client is excluded from partaking in the utilization proceeds. This shall not apply if the Client agrees in advance to cover all costs of disposal and compensate GOHR-SPS for the effort of utilization based on its general price list.
4. Cooperation and other Obligations of the Parties
4.2. In particular, Client shall, in addition to the cooperation obligations stated in Part 1 of these Terms and Conditions, and to the extent necessary, a) specify the requirements of the works, e.g. from a functional and organisational point of view, in writing and in sufficient form and precision (Functional Requirements Document), b) provide scenarios, plans and data for testing purposes, whereas these shall reflect the later productive use and its requirements with sufficient accuracy, c) provide a development and test bed environment, d) document errors that are observed during testing or productive use in a reproducible, or at least comprehensible form, and inform GOHR-SPS without undue delay, e) continuously maintain his system environment (hardware and software), unless a maintenance agreement is entered into with GOHR-SPS, and f) make and implement decisions on investments necessary for the execution of this agreement in a timely manner.
5. Amendments of the agreement
5.1. The Client may amend or expand the order placed with GOHR-SPS at any time.
5.2. The Client is obliged to separately compensate additional effort resulting from the amendment or extension of the order, unless GOHR-SPS informs the Client at least in text form that no separate fees shall apply.
5.3. An agreed performance date shall be postponed by an appropriate period of time comprising the additional time and the waiting times resulting from GOHR-SPS’ resource planning, without requiring a new explicit agreement.
6.1. Completed works under this Part of the Terms and Conditions are subject to acceptance. Works performed pursuant to other Parts are only subject to acceptance if expressly so agreed.
6.2. GOHR-SPS will notify the Client in text form of respective works or partial works being ready for acceptance.
6.3. Upon such notification, Client, and where applicable GOHR-SPS, shall begin the agreed functionality and acceptance tests without undue delay, at the latest within three (3) business days. The testing phase should not exceed five (5) business days, but shall be reasonably extended upon Client’s request if the necessary testing will foreseeably require more time, or if testing is delayed due to circumstances unforeseeable for both Parties.
6.4. Upon successful completion of the functionality and acceptance testing, Client shall declare acceptance in text form without undue delay. Acceptance must be declared if the works or partial works meet the agreed requirements in all substantial aspects. The works or partial works meet the agreed requirement in all substantial aspects if it does not contain errors that either a) cause the works or partial works that are to be accepted to be unusable, or b) cause substantial impairment of the use of vital functionality, which cannot be worked around temporarily using suitable measure for a reasonable amount of time.
6.5. Acceptance shall be deemed to have been declared even without express statement if Client a) neither requests an extension of the period for functionality and acceptance testing nor makes a complaint of the works or partial works not meeting the agreed requirement in all substantial aspects within fifteen (15) calendar days, or b) uses the delivered works productively without making a complaint of the works or partial works not meeting the agreed requirement in all substantial aspects within three (3) calendar days.
7. Contractor’s lien
7.1. GOHR-SPS gains a lien on the machine parts received from the Client for repair in order to secure all due payment claims resulting from the business relationship with the Client, regardless of the legal ground.
7.2. Furthermore, particularly for utilization, the statutory provisions shall apply.
8. Payment Terms
8.1. The agreed consideration shall be due upon acceptance of the works. If no fixed consideration is agreed between the Parties, the amount shall be calculated based on effort and GOHR-SPS’ general pricelist.
8.2. Work exceeding the agreed extent of the agreement is charged separately. Failing other agreement, GOHR-SPS’ general pricelist shall apply. The same shall apply to work performed due to inaccurate or incomplete information provided by the Client, non-verifiable complaints, improper handling or use of the systems, or breaches of duty by Client.
8.3. GOHR-SPS shall have the right to demand reasonable advance payments.
9. Rights in Case of Defects
9.1. In case of defects, the statutory rights for contracts for work shall apply, subject to the following provisions:
9.2. Client’s claims in case of defects shall be time barred after one (1) year of the statutory begin of limitation. The aforementioned does not apply in cases GOHR-SPS is liable for culpable violation of life, limb or health, and in cases GOHR-SPS is liable for claims for damage based on intent or gross negligence, including intent or gross negligence of GOHR-SPS’ representatives or vicarious agents.
9.3. Defects shall be substantiated by verifiable description of the error indications if possible documented in writing or by similar illustrative records, and claimed in text form. The claim of defect should allow replication of the defect. Statutory obligations of inspection of works and notification of defects shall remain unaffected.
9.4. If a seal, a sticker with serial number or similar provision to make visible any opening is attached to machine parts, the Client shall be obliged to keep such seal, sticker or other provision physically intact. If such a seal, sticker or similar provision is damaged in such way that suggests that the machine part is likely to have been opened, tampered with and/or repair has been attempted by the Client or a third party on behalf of the Client, the Client shall bear the burden of proof that such opening, tampering or repair attempt was not (partly) responsible for the defect underlying the Client’s complaint or for any deterioration of the machine part’s condition.
PART 4: SALE, PURCHASE AND EXCHANGE OF NEW PARTS AND REPLACEMENT PARTS
1. Sale, purchase and exchange of new parts and replacement parts, reservation of delivery by suppliers
1.1. The rules of this Part 4 shall primarily apply to the sale and purchase of goods, especially to new and used machine parts.
1.2. The provisions of this Part shall also apply to the sale of machine parts that is executed as an exchange, i.e. with trade-in of the defective machine parts that are to be replaced.
1.3. Correct and punctual delivery by GOHR-SPS’ suppliers is reserved.
2. Purchase or trade-in
2.1. For every machine part GOHR-SPS receives in the course of a purchase, repurchase or trade-in (exchange), a functional test according to Part 2, Sect. 2 is performed.
2.2. The execution of the functional is subject to additional fees. Unless otherwise expressly indicated in case of an exchange or trade-in, the compensation of the functional test is included in the exchange’s total price.
2.3. In case of further expenses related to the reception and storage of a machine part (e.g. packing suitable for storage, labelling), these expenses shall be compensated separately. Unless otherwise indicated in case of an exchange or trade-in, expenses for storage are included in the exchange’s total Price.
3. Client warranty for material deficiency
3.1. For trade-in, the statutory warranty for material deficiency shall apply, providing that a warranty for the usual wear and tear and deficiencies due to which the machine part is replaced is excluded.
3.2. The statutory warranty for material deficiency shall apply to the purchase, providing that a warranty for the usual wear and tear and deficiencies on which GOHR-SPS has been informed in advance at least in text form is excluded.
3.3. Furthermore, Sect. 9 shall apply accordingly in favor of the Client.
4. Rejection of the purchase or trade-in by GOHR-SPS
4.1. Irrespective of (statutory) rights to withdraw from the contract, GOHR-SPS shall have the right to reject the purchase or trade-in of the machine part if a) the machine part to be traded in is delivered to GOHR-SPS later than seven (7) work days after receiving the replacement part, b) the outcome of the functional test is that the machine part to be purchased or traded in is irreparably damaged or c) the result of the functional test is that a repair would be uneconomical.
4.2. If GOHR-SPS rejects the purchase or the tradein according to this regulation, the regulations of Part 3, Sect. 3 shall apply accordingly.
5. Further payment conditions
5.1. If GOHR-SPS rejects trade-in, the Client still owes the full sale price.
5.2. If GOHR-SPS reduces the trade-in or purchase price due to a defect not excluded from warranty, the Client still owes the sale price minus the reduced trade-in or purchase price.
5.3. Furthermore, the payment conditions of Part 1 shall apply.
6. Hardware Selection and Suitability
6.1. Suitability and appropriateness of the ordered configuration of the hardware for the intended use by the Client shall become part of the agreement only if GOHR-SPS has analysed the intended use by the Client and confirmed suitability and appropriateness in text form.
6.2. If the selection of the hardware configuration was done by the Client, or by GOHR-SPS based on information provided by the client, suitability and appropriateness of the selected configuration shall be part of the agreement only insofar as the provided information on the intended use is accurate and complete.
7. Passing of risk, shipping
7.1. Unless otherwise agreed expressly, the place of performance for the sale of goods shall be GOHR-SPS’ place of business, even if GOHR-SPS bears the costs of shipping.
7.2. Obvious transport damage of the goods or severely damaged transport packaging must be objected immediately upon receipt of the goods, documented in writing and, if necessary, acceptance of the goods must be declined.
7.3. In case of transport damage GOHR-SPS supports the Client with the assertion of claims against the carrier and GOHR-SPS will assign its own claims against the carrier to the Client if necessary.
8. Reservation of Title
8.1. All delivered goods shall remain the property of GOHR-SPS until receipt of payment in full for all claims arisen from the current business relationship.
8.2. The Client shall be entitled to resell the goods in the orderly course of business. The Client assigns the purchase price claim against the buyer (serving as security) to GOHR-SPS, who accepts the assignment up to the amount of the purchase price agreed with GOHR-SPS. Until further notice, the Client shall remain entitled to collect the purchase price.
8.3. The parties assume that machine parts can be installed and removed with reasonable effort and thus, an inextricable combination in terms of one part becoming an essential part of another will only occur in exceptional cases. The parties further assume that machine parts remain distinguishable of identical types of parts by serial numbers or comparable identification features and that a mixing, even in warehouses, only occurs in exceptional cases.
8.4. The combination or mixing of reserved goods with other goods shall be done on behalf of GOHR-SPS. Unless another object is regarded as main part, GOHR-SPS shall acquire coownership of the combined or mixed object according to the proportion of the good’s value at the time of combining or mixing.
8.5. The reserved goods are stored by the Client free of charge for GOHR-SPS and must be handled with the due care of a diligent merchant. The Client assures that reserved goods are covered by the Client’s existing insurances, for example insurance against natural disasters and theft insurance. The Client already assigns his entitlement to benefit against the insurance company with regard to the reserved goods to GOHR-SPS, who accepts the assignment. The assignment of the claim shall be effected on account of performance and does not release the Client from his duty to pay the agreed purchase Price.
9. Rights in Case of Defects
9.1. The statutory rights for sales contracts shall apply, subject to the following provisions:
9.2. Client’s claims in case of defects shall be time barred after one (1) year of the statutory begin of limitation. The aforementioned does not apply in cases GOHR-SPS is liable for culpable violation of life, limb or health, and in cases GOHR-SPS is liable for claims for damage based on intent or gross negligence, including intent or gross negligence of GOHR-SPS’s representatives or vicarious agents.
9.3. Client shall be obliged to inspect the delivered goods for operability without undue delay in accordance with sect. 377 of the German Commercial Code.