General Standard Terms and Conditions of Performance Service GmbH
1. Scope of application, conclusion of contract
1.1 We render our performed services, particularly installation, assembly, maintenance, servicing, repair, commissioning and other services (hereinafter: “services”), to customers in commercial/business relations on the basis of these General Standard Terms and Conditions. They alone are applicable; opposing terms and conditions or those that deviate from statutory provisions are hereby expressly discounted. The above also applies if we unreservedly render performance in the knowledge of deviating terms and conditions on the part of the customer.
1.2 In the event of an ongoing business relationship these General Standard Terms and Conditions shall also apply to all future dealings and transactions with the customer unless we expressly agree other terms and conditions with the customer.
1.3 Our offers are without engagement. A purchase order by the customer requires acceptance by means of our written acknowledgment of the order. However, we reserve the right to accept a purchase order by the customer by way of the actual provision of the services.
1.4 Contract alterations or amendments become binding only after our written acknowledgment.
2. Content and performance of services, non-assignment clause
2.1 Our services comprise the work set out specifically in the acknowledgment of order and the technical details mentioned therein. If performance specifications exist, these shall be definitive with regard to the performance description.
2.2 All details in drawings, plans and illustrations apply, unless otherwise agreed, only approximately on the condition that contractually owed success in all is not impaired as a result. If the attainment of specific values and tolerances is agreed, we reserve the right to entertain deviations that are customary in the trade and for the product.
2.3 If we take on monitoring services for the work of third parties or the customer, we shall, unless otherwise agreed, monitor the performance of the work with regard to its accord with the technical plans and guidelines passed on to us and in the event of failures or defects notify the customer. The customer alone is responsible for taking any measures that may be required as a result. If there is a risk of delayed performance, we shall, in the interests of the customer and at his expense, be entitled to take the necessary measures ourselves.
2.4 We shall be able to accept requests by the customer to change the content of the service and performance periods or other deadlines by adapting the contract and against reimbursement of possible additional costs occasioned as a result.
2.5 We shall be entitled to engage subcontractors and other third parties to fulfil our contractual obligations. We shall furthermore be entitled to render partial performance to an extent that is customary in the trade and reasonable for the customer and to invoice for such partial performance separately.
2.6 If the customer terminates a contract concluded with us, he must make over the agreed remuneration to us by reimbursing any saved expenses. If the provision of our services does not take longer than four months, the customer shall however only be able to terminate for cause.
2.7 Claims by the customer against us may not be assigned to third parties without our prior written consent.
3. Prices and terms of payment
3.1 Unless otherwise agreed, our services shall be paid for according to the accrued labour and travelling times at our valid hourly rates in each case. Waiting periods/delays for which we are not responsible shall be invoiced as labour time. The customer shall furthermore bear the separate travelling expenses, travel costs and accommodation expenses for our staff.
3.2 Overtime and working on Sundays and public holidays requested by the customer are subject to increased hourly rates.
3.3 Our time sheets must be countersigned by the customer.
3.4 Incidental expenses such as transport, packaging and insurance costs must be borne by the customer.
3.5 We shall invoice for cost estimates at the customary rates for us.
3.6 If the customer requests a service that is not provided for in the contract and we perform this service, we shall have a claim to special remuneration, which is determined according to the principles of pricing for contractual performance and the special costs of the requested performance.
3.7 If, after the moment when the contract is concluded with the customer until the agreed date of performance, the costs of the means used by us to render our services increases by more than 10 %, we shall be entitled using equitable discretion to increase the total price unilaterally, whereby the respective change in cost is to be the yardstick. This right to adjust the price shall only exist, however, if there is a period of at least four months between the conclusion of the contract and the date of performance and we are not responsible for any delay in the performance. If we increase the total price on account of an aforementioned cost increase, the customer shall be entitled within two weeks of receiving our communication of the price increase to withdraw from the contract.
3.8 The customer shall be in default if he fails to make payment within two weeks of our invoice becoming due and being received.
3.9 In the event of a significant deterioration in the customer's creditworthiness which substantially jeopardises our claim to payment, we shall be entitled to withdraw from the contract and immediately demand as due all debts outstanding for services rendered by us.
3.10 The customer shall not have a right of offset or retention unless his counterclaim is undisputed, legally established or ready for adjudication. The customer shall furthermore not have a right of retention either if his claim arises from the same contractual relationship as our claim and is proportionate to the latter.
4. Duties of the customer to cooperate and inform
4.1 The customer must within an appropriate period of time after the contract is concluded nominate and notify us of a qualified person as the project manager, who is authorised to give and receive binding declarations for the customer.
4.2 The customer must on his own responsibility make available to us all the information that is essential for the performance of our services and in the disclosure of which we have a legitimate interest. He must inform us in particular about all the special safety regulations in force at the place of performance. The customer must notify us well in advance of the position of the gas pipes, water pipes and electricity cables laid at the place of performance.
4.3 The customer shall make available to us free of charge and in good time:
- the documents, objects, devices and materials, scaffolding, lifting gear and similar fixtures required to perform our services,
- cargo, transport frames, pallets, containers,
- objects, materials and other auxiliary materials which are required for commissioning and a possible function or acceptance test,
- electricity, gas, water, telecommunications.
4.4 If prior to the performance of our services preliminary work is to be carried out by the customer – whether it be at the premises of the customer himself or of third parties – and the customer during the preliminary work carried out by him identifies circumstances which are essential for the performance of our services, he must notify us thereof in good time in advance in writing.
4.5 If the customer has committed himself to training, he must employ qualified staff in so doing. If the training is to be conducted on a particular device or installation on which we have to perform services, the training shall address possible specific particularities of the device or installation in question.
5. Performance periods, compensation in damages in event of default
5.1 Insofar as a performance period is agreed with the customer, this only begins to run when the agreed advance payments are made, all the documents and information to be furnished by the customer are made available, the necessary preliminary work or preliminary services are performed and the essential technical details which are to be communicated by the customer are clarified. We reserve the right of punctual delivery to ourselves. If we have started to perform our service and the aforementioned preconditions are still pending even after the performance work has been started, the performance period shall be extended by an appropriate period of time.
5.2 If performance on demand is agreed, the customer shall upon request provide us in good time with information about the expected start of performance.
5.3 Agreed performance periods are deemed to be fulfilled on completion of our services.
5.4 If we are prevented from performing our services by the onset of unforeseen events which we could not with reasonable diligence avert, as in the event of force majeure, war, labour disputes, natural disasters, accidents or administrative or state orders, the agreed performance periods shall be extended by an appropriate period of time. If it is impossible for us to perform our services as a consequence of this circumstance or it is only possible with disproportionate financial expense, we shall be entitled to withdraw from the contract. The customer has the same right if he cannot be expected to adhere to the contract as a result of the hindrance.
5.5 In the case of a delay in performance, claims for damages by the customer against us shall – regardless of the legal prerequisites – be limited for each full week of the delay to 0.5 % and in total to a maximum of 5 % of that part of the performance for which the delay exists. The aforementioned limitation of liability does not apply in the event of intent or gross negligence or other mandatory liability in accordance with Section 9.3. The aforementioned provisions do not involve a change in the onus of proof.
6. Acceptance, passage of risk
6.1 The customer must declare an acceptance within an appropriate period of time following completion. Acceptance must be performed in separable parts of the performance separately after completion of the individual parts.
6.2 If through no fault of our own the acceptance fails to happen in good time or in full, the subject of performance shall, after our written request for acceptance and no later than after an appropriate period set by us has passed, be deemed to be accepted provided we have specifically referred to this consequence.
6.3 The effect of an acceptance in each case eventuates even if the customer or a third party with the customer's consent puts into operation the respective devices or installations on which we have performed services.
6.4 The risk of accidental destruction and accidental deterioration shall pass on completion of our services to the customer.
7. Proprietary rights and copyright, confidentiality
7.1 Tools or other things made available temporarily by us to the customer remain our property, and must be marked as such by the customer and stored separately. They must be handled by the customer with care, upon request insured against fire damage, water damage and theft, and returned to us at the customer's risk and expense.
7.2 We reserve the right of ownership of the installation and replacement parts supplied by us until payment in full of all the accounts receivable owing to us from the business relationship with the customer. The customer must handle the reserved product with care and at our request insure them sufficiently against fire damage, water damage and theft. The customer shall however be authorised to resell the reserved product in the proper course of business. Already now he assigns to us by way of security the accounts receivable resulting the resale to third parties. The customer shall however remain entitled to collect the accounts receivable from the third party. We however reserve the right to revoke this authorisation to collect the accounts receivable for cause, in particular in the event that the customer is in a not insignificant way in default of payment to us or insolvency proceedings are opened in respect of the customer's assets or dismissed for lack of assets. A processing or reshaping of the reserved product shall always be carried out for us. If the reserved product is combined or mixed with other things that do not belong to us to form significant constituent parts of a unified thing, we shall acquire co-ownership of this thing in the ratio of the value of the reserved product to the value of the other things. The customer shall hold in safe custody the new thing, which is classed as a reserved product in accordance with the aforementioned terms and conditions, free of charge for us. If the value of our securities exceeds the existing accounts receivable from the customer by more than 10 %, we shall at the customer's request undertake in this respect to release securities at his discretion.
7.3 We reserve all proprietary rights and copyright in the documents, plans and drawings used to perform our services.
7.4 The customer must handle our documents in confidence. He shall in particular not be entitled without our prior written consent to pass on documents to third parties or make knowledge from these documents accessible to third parties in any other way. The same shall apply in the event that business or company secrets come to the attention of the customer within the framework of the business relationship.
8. Rights arising from defects
8.1 The customer must give us notice of defects immediately and in writing. Otherwise the service shall in this respect be deemed to be approved.
8.2 There shall be no rights arising from defects for defects which are attributable to the nature or quality of preliminary work performed by the customer or a third party. The customer shall likewise not be entitled to any rights arising from defects in the event of only minor impairment of usability, natural wear or unperformed, defective or inexpert repair or servicing by the customer or by third parties.
8.3 If our services are defective on the passage of the risk, the customer shall be entitled at our discretion to request the elimination of the defect or the provision of a new substitute service.
8.4 The place of performance of supplementary performance is the original place of performance. We shall not bear the costs incurred by the supplementary performance insofar as such costs have increased as a result of the respective devices or installations on which we have performed services being moved to a place other than the place of performance.
8.5 After the fruitless expiry of an appropriate period of grace set for supplementary performance and in the event of failed supplementary performance, the customer shall be entitled at his discretion to withdraw from the contract or reduce the price. The customer shall upon request declare to us within an appropriate period of time whether he is withdrawing from the contract or continuing to insist on performance.
8.6 Further rights arising from defects, particularly claims for damages, do not exist – subject to the provisions in Section 9.
9.1 The following provisions apply to claims for damages, and in fact on whatever legal grounds, including all claims for repayment of expenses and rights of indemnity. However, Section 5.5 applies as a matter of priority in the event of a delay in performance.
9.2 We shall not be liable for damages, in particular not for indirect losses or consequential losses such as loss of prospective profits, losses due to business interruption, loss of production or use and financing costs. This exclusion of liability also applies in favour of our legal representatives, vicarious agents and subcontractors.
9.3 The exclusions of liability mentioned in Section 9.2 above shall not apply in the following cases:
- gross negligence,
- within the framework of a warranty,
- loss of life, physical injury or damage to health,
- liability in accordance with product liability legislation,
- culpable breach of a fundamental contractual duty. In this case liability shall however be limited to compensation for the foreseeable loss typical of the contract, insofar as there is not liability due to loss of life, physical injury or damage to health or due to gross negligence or intent. Fundamental contractual duties are in particular those which are needed to achieve the purpose of the contract or the fulfilment of which makes possible the due and proper performance of the contract and in the adherence to which the customer may trust.
9.4 The aforementioned provisions of Section 9 do not involve a change in the onus of proof.
10. Statutory limitation
10.1 The limitation period for defects is one year from the start of statutory limitation. This does not apply if the law makes periods compulsory, among others in the event of an intention to deceive, services at a construction site as contemplated by § 634 a no. 2 German Civil Code and in the cases of mandatory liability mentioned in Section 9.3.
10.2 Incidentally, the regular limitation period for claims by the customer is shortened to two years from the start of statutory limitation.
11. Place of performance, jurisdiction, choice of law
11.1 The place of performance for our services is the place where we provide the services.
11.2 The jurisdiction for all legal disputes between us and the customer is Füssen if the customer is a full merchant, a legal person under public law or a special fund under public law. Suits brought against us are covered by this jurisdiction alone.
11.3 All legal relationships between us and the customer are governed solely by German law excluding the UN Convention on Contracts for the International Sale of Goods (CISG).