1.
General Information and Scope of Application
1.1
These General Conditions (hereinafter: Repair and Maintenance Conditions) apply to all repair work (repairs) and maintenance carried out by CT Kranservice GmbH (hereinafter: contractor) on a construction crane (hereinafter: crane) and its parts and accessories.
1.2
Amendments to the contract and ancillary agreements require written confirmation by the contrac-tor to be effective.
1.3
The General Terms and Conditions (hereinafter: General Terms and Conditions) of the client shall not be binding on the contractor even if the contractor has not objected to them again after receipt. This means that in the event of a conflict between the client's General Terms and Conditions and these Repair and Maintenance Conditions, these Repair and Maintenance Conditions shall apply exclusively. For this reason, any additional or supplementary provisions contained in the cli-ent's General Terms and Conditions that are not included in these Repair and Maintenance Conditions shall not become part of the contract.
1.4
With the transfer of a repair or maintenance order, the authorisation for test drives and test operations shall be deemed to have been granted at the same time.
2.
Cost Details, Cost Estimate and Cancellation of the Client
2.1
As far as possible, the client shall be informed of the expected repair or maintenance price upon conclusion of the contract, otherwise the client may set cost limits.
If the repair or maintenance cannot be carried out at the quoted price or if it proves necessary to carry out additional work or use additional parts or materials, the costs quoted by the contractor may be exceeded by 20%.
2.2
If it transpires during the execution of the commissioned work that the costs specified by the client are exceeded by more than 20% in the interests of proper repair or maintenance, the client shall be informed of this and shall be deemed to have given his consent if he does not immediately object to an extension of the work.
2.3
If a cost estimate with binding price estimates is required before the repair or maintenance work is carried out, this must be expressly requested by the client in writing. Such a cost estimate shall only be binding if it is submitted by the contractor in writing and expressly designated as binding by the contractor.
2.4
If the client cancels the contract, whether due to the cost estimate being exceeded or for other reasons, it must pay the contractor the work and costs incurred up to that point, including the expenses for ordered and already procured spare parts, as well as the profit.
Maturity and Payment of the Remuneration of the Contractor and Retention and Set-Off
3.1
Upon completion or acceptance of the work commissioned by the client from the contractor, but at the latest on the day of receipt of the contractor's invoice, the contractor's entire remuneration shall be due for payment. This remuneration is to be paid by the client immediately and without any deductions.
3.2
The contractor shall be entitled to demand an appropriate advance payment when placing the order.
3.3
Complaints about an invoice from the contractor must be made in writing and within 14 days of receipt of the invoice.
3.4
The client may only offset the contractor's remuneration claims against undisputed or legally established counterclaims. The client may only assert a right of retention insofar as it is based on claims arising from the respective repair or maintenance contract.
Participation of the Client in Repairs and Maintenance outside the Business Operations of the Contractor
4.1
When carrying out repair or maintenance work, the client must provide support to the repair or maintenance personnel at its own expense.
4.2
The client is responsible for the protection of persons and property at the place of repair or maintenance.
4.3
The client is obliged to ensure appropriate working conditions and safety at the place of repair or maintenance.
4.4
The repair or maintenance manager must be informed of the safety regulations to be observed - as far as necessary. Any violations of the safety regulations by the repair or maintenance personnel must be reported to the contractor by the client.
Technical Assistance of the Client in Repairs and Maintenance outside the Business Operations of the Contractor
5.1
If necessary, the client is obliged to provide a sufficient number of suitable assistants for the required time at his own expense.
5.2
The auxiliary staff must follow the instructions of the persons entrusted with the management of the repairs or maintenance by the contractor. The contractor assumes no liability for the auxiliary staff provided.
5.3
The client is obliged to provide the energy required for the repair or maintenance (e.g. lighting, operating power, water), including the necessary connections, at its own expense.
5.4
If necessary, the client shall provide theft-proof rooms for the storage of the tools of the repair or maintenance personnel and heatable recreation rooms at his own expense.
5.5
The client must provide all materials and operating supplies at his own expense and carry out all other actions necessary to adjust the crane and carry out the test.
5.6
The client must ensure that the execution of the commissioned work can begin immediately after the arrival of the repair or maintenance personnel. Any delays for which the client is responsible shall be borne by the client.
5.7
If the client does not fulfil its obligations, the client shall be entitled, but not obliged, to carry out the actions in its place and at its expense.
5.8
The statutory rights and claims of the contractor shall otherwise remain unaffected.
Deadline for the Execution of the Repair or Maintenance
6.1
The contractor's information on repair or maintenance periods is based on estimates and is there-fore not binding.
6.2
In cases of unforeseeable operational hindrances (e.g. work stoppages, work stoppages due to ill-ness of skilled workers, difficulties in procuring spare parts, delays in delivery or performance by suppliers) and in the event of official intervention, force majeure and labour disputes, binding re-pair and maintenance deadlines shall also be extended accordingly.
6.3
Any demonstrable damage incurred by the client as a result of the contractor's delay shall be com-pensated, but in the case of slight negligence only up to a maximum of 5% of the contractor's (net) remuneration. All further claims for compensation on the part of the client due to delay on the part of the contractor are excluded in the event of slight negligence.
6.4
If the client grants the contractor in default a reasonable deadline - unless there is a statutory ex-ception - and this deadline is not met, the client shall be entitled to withdraw from the contract in accordance with the statutory provisions. No further claims shall exist - notwithstanding No. 12.3 of these Repair and Maintenance Conditions.
Decrease of the Repair or Maintenance, Acceptance by the Client
7.1
The contractor shall notify the client of the completion of a repair or maintenance. The sending of an invoice shall also constitute notification of completion of the commissioned work. The client must accept the item to be repaired or maintained within 2 weeks of becoming aware that the commissioned work has been completed.
7.2
If the repair or maintenance has not been objected to by the client at the time of acceptance or if the acceptance has not taken place in due time, the object of the order shall be deemed to have been duly accepted.
7.3
If the client is in default of acceptance, the contractor may charge him storage costs. In this case, the contractor may also store the object of the order at a third location at the client's expense.
Assumption of Risk and Transport for Repair or Maintenance in the Contractor’s Workshop
8.1
Once the client has been notified of the completion of the commissioned work, the risk shall pass to the client.
8.2
The outward and return transport of the crane to be repaired or serviced is generally the responsibility of the client. He shall also bear the risk of loss of or damage to the crane during the outward and return transport.
8.3
If the transport of the crane to be repaired or maintained is undertaken by the contractor as agreed, this shall be at the expense and risk of the client, even if the transport is carried out using the contractor's vehicles.
8.4
The crane handed over by the client for repair or maintenance is not insured against fire, theft, transport and storage damage, etc. These risks shall be insured by the client or shall be insured by the contractor at the express request and expense of the client.
Retention of Title, Extended Lien
9.1
The contractor shall retain title to all units, spare parts and accessories installed by it in the crane it has repaired or maintained until all its claims arising from the contract for work have been paid in full.
9.2
The contractor is entitled to a lien on the client's crane that has come into its possession on the ba-sis of the contract due to its claims arising from the contract for work. The right of lien may also be asserted for claims arising from work carried out earlier, deliveries of spare parts and other services, insofar as they are connected with the crane. The right of lien shall only apply to other claims arising from the business relationship insofar as these claims are undisputed or have been recognised by declaratory judgement.
Old Parts
The disposal of old parts and other items that can no longer be used is the responsibility of the client. Insofar as statutory provisions are issued that stipulate otherwise, the client undertakes to reach an appropriate agreement with the contractor regarding utilisation. It should be assumed that the contracting parties will use the services of third parties to fulfil the obligation to sell.
Claims for Defects
11.1
The contractor shall be liable to the client for defects in the repair or maintenance of the crane in such a way that the contractor shall, at its discretion, remedy the defects by rectifying them in its workshop or at the site of the crane. Further claims by the client are excluded - notwithstanding No. 11.3 of these Repair and Maintenance Conditions and No. 12 of these Repair and Maintenance Conditions.
11.2
The client's claims for defects shall expire 12 months after acceptance of the repair or mainte-nance.
11.3
If the contractor - taking into account the statutory exceptions - allows a reasonable deadline set for subsequent fulfilment to elapse fruitlessly, the client shall be entitled, at its discretion, to reduce the contractor's remuneration or to withdraw from the contract. This (optional) right to reduce the contractor's remuneration or to withdraw from the contract shall also be available to the client in other cases of failure of subsequent fulfilment.
11.4
The client must immediately notify the contractor in writing of any defect in the repair or maintenance. If the client has improperly carried out repair or maintenance work itself or had it carried out by a third party without the contractor's consent, the contractor shall not be liable. The same shall apply if parts in need of replacement are not replaced at the request of the client.
Other Liability of the Contractor and Exclusion of Liability
12.1
If, through the fault of the contractor, the crane to be repaired or maintained cannot be used by the client in accordance with the contract due to omitted or faulty execution of proposals and advice prior to or after conclusion of the contract as well as other contractual ancillary obligations - in particular instructions for operation and maintenance of the crane - the provisions of Nos 11.1 to 11.4 of these Repair and Maintenance Conditions and of No. 12.3 of these Repair and Maintenance Conditions shall apply accordingly, to the exclusion of further claims by the client.
12.2
The contractor shall be liable for property damage culpably caused by the contractor outside the liability for defects. In the event of slight negligence, liability shall be limited in terms of reason and amount in accordance with the terms and conditions and the amount of any liability insurance taken out or to be taken out. If no liability insurance has been taken out, the contractor's liability for damage to property caused by him outside the liability for defects in the event of slight negligence shall be limited to the (net) amount of the contractor's remuneration.
12.3
In addition to these provisions, damages, including indirect damages, irrespective of their nature and irrespective of the legal grounds on which they are asserted, shall only be compensated by the contractor
in the event of gross negligence,
in the event of injury to life, limb or health,
in the event of a culpable breach of material contractual obligations that jeopardises the achievement of the purpose of the contract, with regard to the typical damage foreseeable at the time the contract was concluded,
in cases where liability exists under the German Product Liability Act for personal injury or property damage to privately used objects in the event of defects in the crane,
in the absence of expressly warranted characteristics of the crane, if the purpose of the warranty was precisely to protect the customer against damage not occurring on the crane itself, and
in the case of defects which were fraudulently concealed by the contractor or the absence of which the contractor has guaranteed.
Any further liability of the contractor is excluded.
Place of Jurisdiction, Applicable Law and Severability Clause
13.1
If the client is an entrepreneur, a legal entity under public law or a special fund under public law, the exclusive place of jurisdiction for both parties and for all present and future claims arising from the respective contract for work and services shall be the contractor's registered office. However, the contractor shall also be entitled to sue the client at its general place of jurisdiction.
13.2
German law shall apply exclusively to the exclusion of the CISG (UN Convention on Contracts for the International Sale of Goods).
13.3
Should any provision of these Repair and Maintenance Conditions be or become invalid, this shall not affect the legal validity of the remaining provisions. In the event of an invalid provision of these Repair and Maintenance Conditions, the client and the contractor shall be obliged to negotiate a valid and reasonable replacement provision that comes as close as possible to the economic purpose pursued by them with the invalid provision; the same shall apply in the event of a loophole.