1. Area of validity

The following service conditions are valid for all services provided by BIMATEC SORALUCE and its agents. In particular, they also form the basis for all future service provision, even if they are not agreed expressly at the time of requesting future services. No contradictory or deviating conditions on the part of the client are recognised unless BIMATEC SORALUCE has agreed to them in individual cases expressly and in writing. The provision of services without challenging the deviating contractual conditions on the part of the client does not mean that BIMATEC SORALUCE accepts the validity of the deviating conditions.

Accepting the services of BIMATEC SORALUCE or its agents is considered to be acceptance of these service conditions.

 

2. Conclusion of contract

The client can order services in writing, verbally or by fax. We are obliged to provide services only when we have confirmed the client’s order in writing. The scope of the contract is determined by our order confirmation or our installation report.

 

Upon our request the client is obliged on his part to confirm in writing our written acceptance of his service order. If the client does not produce the declaration on the working day on which we have requested his confirmation, we are no longer obliged to carry out the service. If we provide the client with service documentation prior to, during or after provision of the service for the purpose of error analysis, repair preparation, functional testing or carrying out a repair himself, these documents remain our property. The client may not reproduce these documents or store them in any way, or make them available to third parties – especially service personnel of external companies – without our express written consent. The client undertakes to treat as confidential all commercial and technical details of which he may become aware through the business relationship.

Should it emerge, after conclusion of the service contract, that it is not possible for us to carry out the service due to delays or delivery failures in the supply of spare parts by external companies, we are entitled to withdraw from the service contract. Delays in deliveries of spare parts on the part of external companies do not mean that we have failed to fulfil the terms of service if we are not responsible for causing the delay.

 

3. Prices

The amount of our remuneration is outlined in our current installation price list, which is attached to each of our order confirmations. We are glad to send a copy of our installation price list to our customers upon request.

Travel costs are calculated taking the location of Limburg as their basis, unless a journey is taken specifically from another location in a certain case. If we have indicated in writing upon acceptance of the service order that our service personnel will have to travel from another place, we are entitled to take this location as our basis for calculating travel expenses and journey times.

Spare parts and materials are calculated according to the cheapest delivery price in each case. If the client does not specifically undertake to select the necessary spare parts and the required materials, our service personnel is considered, to the exclusion of § 181 BGB, to be authorised to select the materials to be used and the necessary spare parts. If upgraded spare parts are made available to us that are not in accordance with the standards of the relevant tool machine upon which the contract is based, these must be disposed of by the client. All waste and recyclable materials that are incurred in the framework of our provision of the service must be disposed of by the client at his own expense.

 

4. Service obligations

a)   Service period:

The deadlines suggested by us upon acceptance of the service activity are approximate, unless we have assured commencement of the service at a specific point in time. Our service or reaction deadlines commence only after written confirmation of our service offer by the client. Service times always refer to the time at which we start carrying out the service; no specific date for the completion of the service is assured, unless this has been confirmed in writing.

We have not infringed the contract in the case of any delays in providing the service if these result from minor negligence on our part or that of our agents.

We have not infringed the contract in the event of force majeure or any other extraordinary circumstances for which we are not at fault. In such cases we are also entitled to withdraw from the contract if we are already in arrears. If, in such a case, we do not declare within a reasonable time, upon the request of the client, whether we shall provide the overdue service, the client for his part is entitled to withdraw with regard to the parts of the service that have not been provided by us. This does not affect the rights of the client according to § 649.

 

b)   Scope of service:

The service to be provided by us in the framework of a service contract depends upon the specific phase of the service programme to be carried out by BIMATEC SORALUCE in each case.

A common cause of malfunctions is a defect in the machine components from specific suppliers that are integrated into the machine concerned. For this reason, it is often not foreseeable at the beginning of our service provision whether or not a malfunction is due to the service competence of a certain component manufacturer. Therefore, the following regulation applies to the scope of our service provision:

 

• Diagnosis phase: At the beginning of our service activities, it is agreed that a localisation of the malfunction that has occurred will be carried out. We have fulfilled our obligation in this phase of our activities as soon as we are able to make a statement to the client as to whether the disturbance can be removed in the context of the current service provision by BIMATEC SORALUCE or whether it will be necessary to involve specialist technicians from the manufacturer, third parties, or components manufacturers. The remuneration owed by the client for the fault diagnosis phase is calculated according to our current valid remuneration list. This also applies when we have already eliminated the fault during this diagnosis phase.

 

• Fault elimination phase: If the client decides, after our fault analysis, to commission BIMATEC SORALUCE with the elimination of the fault, a separate issuing of a repair contract is necessary, to which these service conditions also apply. The remuneration due in the fault elimination phase is also calculated according to the relevant tariffs that are outlined in our remuneration list.

 

• Fault elimination by the components manufacturer: If the client decides, based on our fault diagnosis, to charge specialist technicians from the relevant machine manufacturer with removing the fault, to be arranged by us, these service conditions also apply between the technicians of the machine manufacturer and the client, unless other contractual conditions have been expressly agreed.

 

• Fault elimination by the components manufacturer: If the client decides, based on our fault diagnosis, to avail of the services of a components manufacturer or an external company, BIMATEC SORALUCE does not accept any liability or give any guarantee for the work carried out by these service providers. In particular, the service providers in question do not qualify as agents of BIMATEC SORALUCE.

 

5. Framework conditions of the service provision

During the provision of the service our technicians are authorised at all times to turn off the machines affected by the malfunction. We are not liable for any effects that this service activity may have on the usability of the client’s other machines and plants, in particular for production downtimes. The client is obliged, upon our demand, to provide us with raw material, operational and auxiliary materials free of charge for the purpose of carrying out tests. We are not liable for any damages to raw materials or semi-finished products incurred during tests. The client is obliged to take all necessary measures for the protection of persons and items at the installation location at his own cost. He must instruct our personal about existing safety measures.

• The client is obliged to provide technical assistance at his own cost in accordance with the following regulations:

The client is obliged to provide us with suitable assistants free of charge to carry out the service. The client’s management personnel responsible for the machines affected by the malfunction must be available to our technicians upon their request for the entire duration of the service provision. If we make use of the assistants provided by the client while carrying out our service, we are not liable for their activities.

• The client shall provide all necessary devices, objects and auxiliary materials.
• The client shall provide heating, water and lighting.
• The client shall provide lockable personal and storage rooms for our personnel with sanitary facilities, heating and lighting.

If the client does not fulfil his obligations upon demand and within a reasonable time period, we are entitled to substitute these at the expense of the client.

 

6. Payment conditions

The payment deadline commences with the issuing of the invoice following completion of each phase of the service provision without consideration of any necessary acceptance of our services after the fault elimination phase. Payment must be made immediately without deduction. We are entitled to issue invoices in EURO if we so choose, and to book the payments accordingly.

The client is considered to be in payment arrears without entitlement to a reminder notice if the payment deadline as outlined on the invoice is exceeded. For each week of arrears the client will be charged arrears fees at a flat rate of 1 % of the service price, but a maximum of 10 %. This does not affect any other claims with regard to arrears compensation. Receipt of payment does not mean a waiver of damages claims in the event of payment arrears.

The client does not have the right to set any counterclaims resulting from the service provision against the payment claims or to withhold payment due to a counterclaim, as long as the counterclaim in question has not been legally authorised or recognised expressly by us.

The client is not entitled to assign any claims against us resulting from the service contract to third parties without our prior written consent.

 

7. Guarantee

Any defects in our service provision must be reported to us in writing immediately, within 3 working days from the point at which the client had the opportunity to become aware of them. Following a defect report the client must, upon our demand, cease operation of the affected machine in the production process immediately.

In the event of poor fulfilment of our obligations as outlined in the service contract on our part, we are first entitled to make two attempts to improve our service. If these improvements do not succeed, or if we do not undertake any attempt at improvement within a reasonable time frame, the client is entitled to change the service contract.

 

Claims against us resulting from poor fulfilment of the service contract generally lapse after 6 months, in the diagnosis phase upon completion of the fault diagnosis, in the fault elimination phase upon acceptance of the service provision.

We do not accept any liability for any damages resulting from changes or repair work carried out by the client or third parties without our prior consent. This does not affect the client’s right to produce evidence that the relevant measures did not have any negative consequences for the functionality of the device in question. The client is entitled to engage a substitute provider to remove defects only in urgent cases of operational safety or to prevent unreasonably high damages.

All claims against us resulting from unauthorised action, positive contract infringement, negligence upon entering the contract or incapability and incompetence are excluded as long as we or our agents are not guilty of intent or gross negligence. If the claims do not concern unforeseeable damages, non-typical damages or damages resulting from defects, our liability is limited to minor infringement of cardinal obligations.

This does not affect claims pursuant to the product liability law.

 

8. Securities

The client is obliged, upon our request, to provide us with security for the costs of the service provision at the machines in accordance with § 648 a BGB (German Civil Code), whereby the damages regulation § 648 a BGB is also considered to be agreed. This does not affect our statutory deposit and security rights.

Spare parts remain our property until the complete payment of our services. If our ownership of spare parts declines due to installation or processing, then we can claim ownership of the item in which these spare parts have been installed or in the new item that has been produced using the spare parts in relation to the gross value of the spare parts to the value of the item. This share in ownership transfers to the client only after complete payment of all demands.

 

9. Approval

As soon as we have indicated the conclusion of the service provision to the client, in the event that an examination was outlined in the contract, the client is then obliged after completion of the work to approve our service provision.

If the client commences operation of the machine or facility to which our service provision was related, then our service provision is considered to be approved and accepted. The client may not refuse approval in the event of a minor defect, as long as we accept our obligation to remove the fault. If the approval is delayed through no fault of our own, our service provision is considered to be approved and accepted after a period of 2 weeks following indication of its completion. Upon approval and acceptance, no further liability exists for recognisable faults unless the client has made a written claim for compensation for a specific fault. Full remuneration remains due without consideration of such a reservation.

 

10. Final provisions

Jurisdiction is agreed to be Limburg, as long as the client is a registered merchant and a legal entity under public law or separate estate. In addition and independently of this we are entitled to make claims in the legal jurisdiction of the client.

German law applies to all contractual and other legal relationships to our suppliers under exclusion of the UN Sales Convention of 11.8.1980. The contract language is German. If the parties choose to use another language, the German text of the agreement has legal priority.

Should a provision in these service conditions be or become invalid, this does not affect the validity of any other provisions or agreements.