VDMA conditions for repairs to machines and systems for domestic business
by a person who, when entering into the contract, is acting in the course of his commercial or independent professional activity (entrepreneur)
in relation to legal entities under public law or a special fund under public law.
I. Conclusion of contract
If there is an undisputed written order confirmation, this is decisive for the content of the contract and the scope of the repair.
If the repairing item is not delivered by the contractor, the costumer must point out existing industrial property rights.
If the contractor is not at fault, the customer releases the contractor from any third party claims arising from industrial property rights.
II. Impossible repair
The services provided for the submission of a cost estimate as well as the further expenses incurred and to be documented (troubleshooting time equals working time) will be charged to the customer.
If the repair cannot be carried out for reasons for which the contractor is not responsible, particularly because the fault had not shown during the inspection,
unavailable spare parts
customer culpably missed the agreed date
the contract is terminated during execution
The item to be repaired only needs to be returned to its original condition at the express request of the customer, against reimbursement of the costs, unless the work undertaken was not necessary.
In the case of a repair that cannot be carried out, the contractor shall not be liable for damage to the repair item, the breach of contractual ancillary obligations and for damage that has not occurred to the repair item itself, regardless of the legal basis on which the customer relies. The contractor, on the other hand, is liable for intent, gross negligence on the part of the owner or manager, as well as in the event of culpable violation of essential contractual obligations. In the event of culpable violation of essential contractual obligations, the contractor shall only be liable - except in cases of intent and gross negligence on the part of the owner or executive staff - for the contractually typical, reasonably foreseeable damage.
III. Cost information, cost estimate
As far as possible, the customer will be given the expected repair price when the contract is concluded, otherwise the customer can set cost limits.If the repair cannot be carried out at these costs or if the contractor deems it necessary to carry out additional work during the repair, the customer's consent must be obtained if the specified costs are exceeded by more than 15%.
If a cost estimate with binding price estimates is requested before the repair is carried out, the customer must expressly request this.
IV. Price and payment
The contractor is entitled to request a reasonable advance payment upon conclusion of the contract.
When calculating the repair, the prices for parts, materials and special services, as well as the prices for work, travel and transport costs must be shown separately. If the repair is carried out on the basis of a binding cost estimate, a reference to the cost estimate is sufficient, with only deviations in the scope of services having to be specifically mentioned.
The value added tax is charged at the customer's statutory rate.
Any correction of the invoice by the contractor and a complaint on the part of the customer must be made in writing not later than four weeks after receipt of the invoice
Payment is to be made without discount upon acceptance and delivery or delivery of the invoice.
Withholding payments or offsetting due to any counterclaims of the customer disputed by the contractor is not permitted.
V. Cooperation and technical assistance of the customer in case of repairs outside of the contractor's work
The customer must support the repair personnel in carrying out the repair at his own expense.
The customer must take the special measures necessary to protect people and property at the repair station. He also has to inform the repair manager about existing special safety regulations, insofar as these are important for the repair personnel. He informs the contractor of repairs of any violations against the safety regulations. In the event of serious violations, the offender can, in consultation with the repair manager, refuse access to the repair site.
The customer is obliged to provide technical assistance at his own expense, in particular to:
Provision of the necessary, suitable auxiliary staff in the number and time required for the repair; the assistants must follow the instructions of the repair manager. The contractor assumes no liability for the assistants. If the assistants cause a defect or damage as a result of instructions from the repair manager, the provisions of sections X and XI apply accordingly.
Carrying out all construction, bedding and scaffolding work including procurement of the necessary building materials.
Provision of the necessary devices and heavy tools as well as the necessary commodities and materials.
Provision of heating, lighting, operating power, water, including the necessary connections.
Provision of necessary, dry and lockable rooms for storing the tools of the repair personnel.
Protection of the repair site and materials against harmful influences of any kind, cleaning of the repair site.
Provision of suitable, theft-proof common rooms and work rooms (with heating, lighting, washing facilities, sanitary facilities) and first aid for the repair personnel.
Provision of the materials and all other actions that are necessary to regulate the repair item and to carry out a contractually stipulated trial.
The customer's technical assistance must ensure that the repair can be started immediately after the arrival of the repair personnel and can be carried out without delay until acceptance by the customer. If special plans or instructions from the contractor are required, the contractor will provide them to the customer in good time.
If the customer does not meet his obligations, the contractor is entitled after setting a deadline, but not obliged to take the actions incumbent on the customer in his place and at his expense. Otherwise the legal rights and claims of the contractor remain unaffected
VI. Transport and insurance for repairs in the contractor's factory
Unless otherwise agreed in writing, the transport and delivery of the repair item, including any packaging and loading, will be carried out at the customer's request, otherwise the repair item will be delivered by the customer to the contractor at his own expense and after the repair has been carried out picked up at the contractor by the customer.
The customer bears the risk of transportation.
At the customer's request, return transport and, if necessary, return transport against the insurable transport risks, e.g. Theft, breakage, fire, insured.
There is no insurance cover during the repair time at the contractor's plant. The customer has to maintain the existing insurance cover for the repair item, e.g. with regard to fire, tap water, storm and machine breakdown. Insurance cover for these dangers can only be obtained at the express request and at the expense of the customer.
If the customer defaults on the takeover, the contractor can charge storage fees for storage in his plant. The repair item can also be stored elsewhere at the contractor's discretion. The cost and risk of storage are borne by the customer.
VII. Repair period
The information on the repair periods are based on estimates and are therefore not binding.
The customer can only request the agreement of a binding repair period, when the scope of the work has been precisely determined.
The binding repair deadline is met if, by the expiry of the repair item, the customer is ready to take it over, in the case of a contractually provided test, to carry it out.
In the case of additional and extension orders placed later or if additional repair work is necessary, the agreed repair period will be extended accordingly.
If the repair is delayed by measures in the context of industrial disputes, in particular strikes and lockouts, as well as the occurrence of circumstances that are not the fault of the contractor, a reasonable extension of the period occurs, provided that such obstacles can be proven to have a significant influence on the completion of the repair Repair period; this also applies if such circumstances occur after the contractor is in default.
If the customer incurs damage as a result of the contractor's delay, he is entitled to demand a flat-rate compensation for delay. It is 0.5% for each full week of the delay, but in total not more than 5% of the repair price for that part of the object to be repaired by the contractor that cannot be used in time due to the delay. If the customer sets the contractor - taking into account the legal exceptional cases - an appropriate deadline for performance after the due date and the deadline is not met, the customer is entitled to withdraw within the framework of the statutory provisions.
Further claims due to delay are determined exclusively in accordance with Section XI. 3 of these conditions
The customer is obliged to accept the repair work as soon as it has been notified that the repair work has been carried out and if the contractually agreed testing of the repair item has taken place. If the repair proves not to be in accordance with the contract, the contractor is obliged to remedy the defect. This does not apply if the defect is irrelevant to the interests of the customer or is due to a circumstance that is attributable to the customer. If there is an insignificant defect, the customer cannot refuse acceptance.
If the acceptance is delayed through no fault of the contractor, the acceptance is deemed to have taken place two weeks after notification of the completion of the repair.
With the acceptance, the liability of the contractor for recognizable defects lapses, unless the customer reserves the right to assert a specific defect.
IX. Retention of title, extended lien
The contractor retains ownership of all accessories and spare parts and replacement units used until all payments from the repair contract have been received. Further security agreements can be made.
The contractor is entitled to a lien on the repair item of the customer that came into his possession as a result of the claim from the repair contract. The right of lien can also be asserted due to claims from previous work, delivery of spare parts and other services, insofar as they are related to the repair item. The right of lien applies to other claims from the business relationship only insofar as these are undisputed or legally binding.
X. Claims for defects
After acceptance of the repair, the contractor is liable for defects in the repair to the exclusion of all other claims of the customer, without prejudice to Section X.5 and Section XI in such a way that he has to remedy the defects. The customer must immediately notify the contractor of a discovered defect in writing
The contractor's liability does not exist if the defect is negligible for the interests of the customer or is based on a circumstance attributable to the customer. This applies in particular to the parts provided by the customer.
If the customer or third parties improperly make changes or repair work without the prior consent of the contractor, the liability of the contractor for the resulting consequences will be lifted. The customer has the right to rectify the defect itself or through a third party only in urgent cases where operational safety is endangered and to protect against disproportionately large damage, whereby the contractor must be informed immediately, or if the contractor has allowed a reasonable period of time to remedy the defect to elapse to have them removed and to request the contractor to reimburse the necessary costs.
The contractor shall bear the costs of the replacement item including shipping, provided the complaint turns out to be justified, from the immediate costs of rectifying the defect. He also bears the costs of dismantling and installation as well as the costs of any necessary provision of the necessary fitters and assistants, including travel costs, provided that this does not result in a disproportionate burden on the contractor.
If the contractor - taking into account the statutory exceptional cases - allows a reasonable period for the rectification of defects to pass without success, the customer has a right to reduction within the framework of the statutory provisions. The customer's right to abatement also exists in other cases of failure to remedy the defect. The customer can only withdraw from the contract if the repair is demonstrably of no interest to the customer despite the reduction.
XI. Contractor's liability, disclaimer
If parts of the repair item are damaged through the fault of the contractor, the contractor has the option of repairing them or delivering them again at his own expense. The obligation to pay compensation is limited to the contractual repair price. Otherwise, Section XI applies. 3 accordingly.
If, due to the fault of the contractor, the repair item cannot be used by the customer as a result of the failure to perform or incorrect execution of suggestions and advice given before or after the conclusion of the contract, as well as other contractual ancillary obligations - in particular instructions for the operation and maintenance of the repair item - then further claims of the Customers the regulations of sections X and XI. 1 and 3 accordingly.
The contractor is only liable - for whatever legal reasons - for damage that has not occurred to the repair item itself
in the event of gross negligence on the part of the owner or manager,
culpable injury to life, body, health,
in the case of defects which he has maliciously concealed or the absence of which he has guaranteed
insofar as liability for personal injury or property damage to privately used objects is assumed according to the Product Liability Act.
In the event of culpable violation of essential contractual obligations, the contractor is liable even in the case of gross negligence by non-executive employees and slight negligence, in the latter case limited to the contractually typical, reasonably foreseeable damage.
Further claims are excluded.
All claims of the customer - for whatever legal reasons - expire in 12 months. Claims for damages according to section XI. 3.a - e, the statutory deadlines apply. If the contractor carries out the repair work on a building and causes it to be defective, the statutory deadlines also apply.
XIII. Replacement service of the customer
If, during the repair work outside the contractor's work, the devices or tools provided by the contractor are damaged at the repair location, or if they are lost through no fault of the contractor, the customer is obliged to compensate for this damage. Damages due to normal wear and tear are not taken into account.
XIV. Applicable law, place of jurisdiction
For all legal relationships between the contractor and the customer, the law of the Federal Republic of Germany, which is decisive for the legal relationships between domestic parties, applies exclusively.
The place of jurisdiction is the court responsible for the seat of the contractor. However, the contractor is entitled to file suit at the customer's headquarters