The following terms and conditions, valid at the time of ordering, shall apply to all current and future Services of Egin-Heinisch GmbH & Co. KG (hereinafter: “Spindeldoctor”) in regard of the performance of repair, maintenance and other services for machine tools and spindle Services even if they are not expressly agreed again.
The Contract shall only come into force with Spindeldoctor’s written order confirmation by letter, fax or e-mail.
3.1. Time periods specified by Spindeldoctor within which Services are to be carried out are only estimated and, therefore, not binding.
3.2. The Client may only demand an agreement on a binding time period for Services (“Binding Time Period”) if the extent of the works is precisely determined, Spindeldoctor is able to provide necessary Services in time, agreement on the extent of the Client’s duties of cooperation has been achieved and, if necessary, the Client has obtained permits of competent authorities. If the Client requires an extension of the Services or additional Services become necessary, the Binding Time Period shall be extended accordingly.
4.1. Wir sind berechtigt, die Ansprüche aus unseren Geschäftsverbindungen abzutreten.
4.2. All payments with debt-discharging effect are to be made exclusively to Deutsche Factoring Bank GmbH & Co.KG GmbH, Kreuzerkamp 7-11, DE 40878 Ratingen, to whom we have transferred out current and future claims arising from our business relationship. We have also transferred our reserved property to Deutsche Factoring Bank GmbH & Co.KG.
4.3. In order to fulfil our factoring contract (assignment of our receivables and transfer of debtor management), we will forward the following data to the financial services institute Deutsche Factoring Bank GmbH & Co.KG:
4.4. Deutsche Factoring Bank GmbH & Co.KG will pass on the debtor’s company data to credit agencies and trade credit insurers as well as to contract processors (IT data processing, print service providers, etc.).
4.5. Should the purchaser be in arrears with any payment obligations to us, all existing claims shall become immediately due.
4.6. A set-off by the purchaser against counterclaims is excluded, unless the counterclaims are undisputed or have been established as final and absolute. The assertion of a right of retention by the purchaser is excluded, unless it is based on the same contractual relationship or the counterclaims are undisputed or have been established as final and absolute.
4.7. For the assertion of the rights arising from the reserved property, no withdrawal from the contract is necessary, unless the debitor is a consumer.
5.1. Any travel and incidental expenses incurred by service personnel will be invoiced to the Client based on a call-out rate.
5.2. Spindeldoctor calculates its service personnel’s duration of attendance at site on the basis of the schedule of prices and services applicable at that time and available from Spindeldoctor at any time.
6.1. The Client shall at his own expense provide technical assistance in the form, in particular, of:
a) Provision of the necessary suitable auxiliary staff (skilled personnel, manual workers/assistants) in the numbers necessary for the repair or installation and for the necessary time; the auxiliary staff shall obey all instructions given by the repair/installation manager. Spindeldoctor shall be deemed to bear no liability for the auxiliary staff.
b) Performance of all excavation and earthworks, construction, bedding and scaffolding work, including procurement of the necessary building materials.
c) Provision of the necessary equipment and heavy-duty tackle (e.g. lifting equipment, compressors) and of the necessary requisites and utilities (e.g. timber, wedges, underlay elements, cement, plaster and sealing materials, lubricants, fuels, endless drive ropes and drive belts).
d) Provision of heating, lighting, operational power, and water, including the necessary connections.
e) Provision of the necessary dry and lockable rooms for the purpose of storage of the repair/installation personnel’s tools and equipment.
f) Handling of the components at the repair/installation site, protection of the repair/installation site and materials against harm of any and all types, cleaning of the repair/installation site.
g) Provision of suitable theftproof amenity rooms and workrooms (complete with heating, lighting and washing/sanitary facilities) and of First Aid facilities for the repair/installation personnel.
h) Provision of materials and the performance of all other activities necessary for integration/adjustment of the item to be repaired or installed and for the performance of any contractually agreed testing.
6.2. The Client’s technical assistance must be such that the work can be started immediately upon the arrival of the Spindeldoctor’s personnel and continued without interruption up to acceptance inspection by the Client. Spindeldoctor shall provide to the Client in good time any necessary special plans or instruction.
7.1. Unless otherwise agreed, Spindeldoctor shall select the packaging, shipping method and transport route.
7.2. The risk passes over to the Client as soon as the goods /delivery item is handed over to the carrier.
7.3. The Client is obliged to return any packaging material to Spindeldoctor at his own cost.
Until such time as all our accounts receivable from the customer have been settled in full, the goods delivered shall remain our property. The customer is entitled to sell these on in the normal course of business, provided he is not in default of payment. However, the customer may not pledge the goods subject of reservation of title, or assign them as collateral. Even now, the customer assigns to us as a precautionary measure his accounts receivable vis-a-vis his customers arising from the selling on of the reserved goods, as well as any claims of the customer regarding the reserved goods which arise from other legal grounds (including vis-a-vis third parties).
Any processing or alteration of the reserved goods by the customer shall always ensue on our behalf. If the reserved goods are processed along with other items which do not belong to us, we shall acquire coownership of the new item in the ratio in which the value of the reserved goods (invoice sum incl. VAT) relates to other combined or amalgamated items at the time of combination or amalgamation.
If the customer’s item is to be regarded as the primary item, the customer shall assign pro rata coownership of the item to us. We accept this assignment. The ownership or co-ownership of the item shall be held for us by the customer.
Spindeldoctor has a lien on the Client’s object of repairs which has come into its possess The lien can be enforced due to claims from earlier conducted works, spare parts supplies and other Services, insofar as they have some relation to the object of repair. The lien persists as long as the debt has not been repaid.
Spindeldoctor shall not be held responsible for complete or partial non-fulfilment of its obligations under the contract if such non-fulfilment resulted due to Force Majeure (strike, lockout, terrorism, sabotage, atomic/nuclear accidents, fire, flood, earthquake, war, war-like operations, piracy, industrial action etc.) which might occur in the process of fulfilment of any Services according to the contract.
Spindeldoctor shall not be liable in any way for loss or damage arising directly or indirectly through or in consequence of such Force Majeure events or happenings.
11.1. Spindeldoctor shall after acceptance of the repair/installation be deemed to bear liability for defects in the supply/service with the exclusion of all other claims on the part of the Client and without prejudice to § 6 and 12, such that Spindeldoctor shall be required to rectify the defects. The Client undertakes to notify Spindeldoctor in writing immediately when a defect is ascertained.
11.2. Spindeldoctor shall be deemed not to bear liability in cases in which the defect is of no major significance for the interest of the Client or is the result of a circumstance for which the Client is responsible. This shall apply, in particular, to any and all parts provided by the Client.
11.3. Spindeldoctor shall be deemed not to be liable for the consequences of any modifications and/or repair work performed incorrectly and without the prior approval of Spindeldoctor by the Client or by third-parties. The Client shall be deemed to possess the right to himself rectify the defect or have it rectified by third-parties and to require reimbursement by Spindeldoctor of the costs thus necessarily incurred only in urgent cases of the endangerment of operational safety and reliability and for the prevention of otherwise excessive loss or damage, in which circumstances the Client must inform Spindeldoctor immediately, and/or where Spindeldoctor – taking account of the legal exceptions – has allowed a period set to him for rectification of defects to expiry without satisfactory result.
11.4. In case of justified complaint, Spindeldoctor shall bear the immediate costs arising as a result of elimination of the defect(s) provided such bearing of costs does not result in an unreasonable burden on Spindeldoctor. Where a request by the Client for rectification of defect(s) proves to be unjustified, however, Spindeldoctor shall be deemed entitled to require reimbursement by the Client of the resultant costs incurred.
11.5. The Client shall, where Spindeldoctor – taking account of the legal exceptions – fails to produce a satisfactory result within a period set for him for rectification of defects, be deemed to possess a right of price reduction within the scope of the legal provisions. The Client may withdraw from the contract only in cases in which the repair/installation would, despite the price reduction, demonstrably not be of interest to the Client.
11.6. Any and all claims and entitlements shall be determined solely in accordance with Section12.3 of these Terms and Conditions.
12.1. Where parts of the item for repair or an installation component supplied for installation by Spindeldoctor suffers damage for which Spindeldoctor is responsible, Spindeldoctor shall at his option and at his own expense either repair or resupply the component. The obligation to replacement shall in the case of simple or gross negligence on the part of non-managerial staff be limited to the amount of the contractually agreed price for repair/installation. Section12.3 shall in all other instances apply correspondingly.
12.2. The provisions of §§ 11, 12.1 and 12.3 shall apply, with the exclusion of further claims on the part of the Client, in cases in which the item for repair or the item installed cannot be used by the Client in the way contractually agreed as a result of proposals and/or advice either culpably omitted by Spindeldoctor or inadequate or incorrect and given prior to or after the signing of the contract or as a result of culpable infringement of other subsidiary contractual obligations and of, in particular, the requirement for provision of instructions (instruction manual) for operation and maintenance of the item repaired or the item installed.
12.3. Spindeldoctor shall be deemed liable for loss or damage not incurred on or to the item to be repaired or installed itself, irrespective of the legal basis, only
a) in case of intent;
b) in case of gross negligence on the part of Spindeldoctor’s owner/representative bodies or of managerial staff;
c) in case of culpable harm to life, limb, or health;
d) in case of defects which Spindeldoctor has knowingly concealed;
e) in the context of promised and guaranteed quality features;
f) where and to the extent that liability is borne for harm to persons and loss/damage of property to privately used items.
In case of his culpable infringement of material contractual obligations, Spindeldoctor shall also bear liability in case of gross negligence on the part of non-managerial staff and in case of simple negligence, restricted in the latter case to reasonably foreseeable loss or damage typical of such contracts. Material contractual obligations shall be defined as obligations, only the fulfilment of which makes troublee-free implementation of Spindeldoctor as intended at all possible and of the adherence to which the Client may normally be confident.
Any and all other claims shall be deemed to be excluded.
13.1. The Client shall be deemed to be obliged to acceptance inspection of the repair/installation as soon as the completion of such has been notified to him and any contractually agreed testing of the item repaired/installed has taken place. Where the repair or installation proves not to be conformant with the contract, Spindeldoctor shall be deemed obliged to eliminate the defect. This provision shall not apply in cases in which the defect is of no major significance for the Client’s interests or is the result of a circumstance for which the Client is responsible. The presence of a non-significant defect shall be deemed not to entitle the Client to refuse acceptance.
13.2. Where acceptance is delayed for reasons for which Spindeldoctor is not responsible, acceptance shall be deemed to have taken place upon the expiry of two weeks from notification of completion of the repair or installation.
13.3. Where the client has not reserved the right to reject a specific defect Spindeldoctor’s liability for easily recognizable defects shall be deemed to terminate upon acceptance.
14.1. Spindeldoctor reserves the right to charge a lump sum payment of 10 % of the entire order value in case of contract-cancellation or contract-termination by the Client. Spindeldoctor shall not be entitled to claim the above mentioned lump if the Client provides counterevidence that the sum according to §648 BGB (German Civil Code) is significantly lower than the lump.
14.2. This lump covers inter alia following expenses: work preparation, logistics, supply of material, restorage, etc.
For these General Terms and Conditions and all legal relations between Spindeldoctor and the Client applies exclusively the law of Germany, excluding the UN Convention for the International Sale of Goods (CiSG).
The place of fulfilment of Services and payment is Kassel. The place of jurisdiction for all disputes arising from the contractual relationship and about its origin and its validity, insofar as the Client is a businessman/a juridical person/a public legal body, is 34117 Kassel, Germany. However, Spindeldoctor has also the right to sue the Client at the place of his registered office.