1. General - Scope - Verbal Collateral Agreements
1.1 All services which we perform in connection with the delivered products beyond the fulfillment of justified warranty claims (e.g. service, commissioning and consulting services, hereafter referred to as "Services") are subject to the following Service Terms and Conditions exclusively. We do not accept conflicting, differing and/or terms and conditions not contained in our Service Terms and Conditions unless expressly agreed upon in writing. This also applies in case we unreservedly perform Services with knowledge of conflicting, differing conditions or conditions not contained in our Service Terms and Conditions.
1.2 Our Service Terms and Conditions shall only apply to entrepreneurs as defined in § 14 German Civil Code (hereinafter referred to as "BGB").
1.3 Our service personnel and our service technicians are not authorized to make verbal collateral agreements.
2. Conclusion of Contract
Unless otherwise agreed upon our service offers are non-binding. The order given by the Client does not become binding for us until we have confirmed it in writing or have implicitly accepted it through performance or issuance of an invoice.
3. Costs - Cost Calculation - Surcharges - Payment Terms
3.1 All costs and expenses arising in connection with our services shall be borne by the Client regardless he may pass these costs and expenses to a third party. We do not accept issuing of invoices to third parties who are not our clients.
3.2 We calculate the total time for our service technicians (travel and service time) during normal service hours (Mondays to Thursdays from 8 a.m. to 5 p.m. and Fridays from 8 a.m. to 4 p.m.) and the accrued travel costs according to the most current Price List. We add the following surcharges to the above rates for service times outside normal service hours:
- Weekdays outside the service hours 50% surcharge
- Saturdays 50% surcharge
- Sundays 100% surcharge
- Holidays (not falling on a Sunday) 150% surcharge
3.3 Travel time and travel expenses for the journey to the service location will be calculated from the plant which the respective technician is associated with and from there back to the respective plant.
3.4 Lodging and boardIn-country: Daily stipend excluding overnight accommodations according to the travel cost rates stipulated by the tax authority. Overnight accommodations per receipt or agreed upon flat rate.Out-of-country: Daily stipend excluding overnight accommodations based on country groups. Overnight accommodations based on receipt.
3.5 The above rates do not include value added tax (VAT); the appropriate VAT will be added separately.
3.6 If (replacement) parts are installed, used or otherwise needed in connection with a Service we may invoice the Client for these (replacement) parts. The prices for the (replacement) parts will be invoiced according to the Price List effective at the time the agreement was concluded.
3.7 Payment terms: Cost for Services are due upon receipt of the invoice without any deduction.
3.8 The Client may only sett off its claims to the extent that Client’s are admitted by us, are undisputed or have been finally legally determined. The same applies for rights of retention; besides the Client may only exercise a right of retention if Client’s counterclaim is based on the same contractual relationship.
3.9 The assignment of claims from this contractual relationship is permitted only with our prior written consent. There is no entitlement to granting of such permission. § 354a German Commercial Code (HGB remains unaffected.
4 Time, Content and Scope of Services - Force Majeure
4.1 The Services shall be timely performed in accordance with the agreements made with the Client; otherwise as soon as we are able in terms of time and personnel.
4.2 Unless otherwise explicitly agreed upon, the agreed times for the Services are not fixed deadlines (§ 323 Para. 2 No. 2 BGB, § 376 HGB)
.4.3 The Services in principle shall be performed within normal working hours (cf. Section 3.2). If possible in terms of time and personnel we will also perform Services - if explicitly requested by the Client - outside of normal working hours but with the addition of surcharges (cf. Section 3.2).
4.4 The Services shall be performed according to the agreements made with the Client - and otherwise depending on actual necessity - on the Client’s premises, at the location of the objects on which the Service shall be executed (hereinafter referred to as "Service Objects") or at one of our plants.
If the necessary services are to be performed in one of our plants the Client must send the Service Objects or parts of them to the plant specified by us. The Client shall bear the costs for shipment to and from the plant. The Client also shall bear the risk for any accidental deterioration or loss of the Service Objects during shipment in either direction.If the return of the Service Objects is delayed due to a circumstance for which the Client is responsible we are entitled to charge the Client - following notice of readiness to dispatch - the costs associated with storage but no less than 0.5% of the net selling price of the dispatch-ready Service Objects for each commenced week but in maximum 10% of the net selling price of the dispatch-ready Service Objects. Both parties may prove that higher, lower or no storage costs have arisen.
4.5 We limit our Services to the scope agreed upon (i.e. as part of elimination of faults to the reported faults) or - if the scope has not been agreed upon - to the Service Objects. We are not obligated to perform Services on other objects at the request of the Client.
4.6 Events falling under force majeure, i.e. unforeseen events on which we have no influence and we are not responsible for (e.g. official actions and orders (irrespective if they are valid or invalid), fires, floods, storms, explosions or other natural disasters, disturbances of operation, legal changes) shall extend the time for performance of Services accordingly, even when they occur during an undue delay or at one of our suppliers. If as a result of such instances it is not possible to perform the Service within a reasonable time the Client and we may withdraw from the agreement or from the unfinished part of it. Damage claims arising from such a withdrawal are not permitted.
4.7 If necessary we will leave the Client with the needed operating manuals or other technical information for the Service Objects or the performed Services following completion of the Services.
5. Cooperation Obligations of the Client
5.1 The Client must ensure that the Service may be commenced and performed to its completion without delay by our service personnel at place and location. Access to the Service Objects must be ensured at all times. The working conditions must be such that work may be performed meeting all regulations, especially those pertaining to accident prevention.
5.2 The Client shall keep functional all technical equipment necessary to perform the Service and shall make it available to the service personnel. The Client shall furthermore make available all ancillary equipment and fluids necessary for the operation of the Service Objects. If needed it could be necessary for our service technicians to be supported on site by other experts from our global after-sales support by using an internet connection. For this purpose, the mobile network connection used by Balluff is used together with usual software (e.g. Skype, Microsoft Team, TeamViewer Pilot, etc.). If the mobile network connection could not be used at the location or could only be used with disturbances, the customer is obliged to provide and maintain the necessary telecommunication equipment free of charge (in particular LAN or WLAN) and grant Balluff the access rights exclusively for and during the service assignment. Balluff has the right to use and transmit pictures, sound and video data and/or data of the Balluff products, components and their installation situation, which are used exclusively for diagnostics.
5.3 The Client shall make available any technical personnel necessary for the proper operation of the technical equipment.
5.4 If required an interpreter shall also be provided.
5.5 All cooperation obligations described in this Section 5 must be provided by the Client at no charge. If the Client does not meet his obligations in due time we are entitled but not obligated to perform the obligations of the Client in his place and at his expense.
If the Client is in default in meeting his cooperation obligations or violates them culpably we may claim any resulting damages including any additional expenses. The enforcement of additional claims remains unaffected.
6 Interruption of the Services - Cancelled Services
6.1 If possible, the Services in principle shall be performed without interruption in one operation. If this is not possible due to reasons we or our service personnel are not responsible for the Client shall bear all resulting additional costs, especially for additional travel by service personnel in both directions. This applies even if (replacement) parts must be procured the need for which only became evident as part of the Services and which are not immediately available. In all such cases we shall make all effort to complete the Service as soon as possible, however only against reimbursement of additional expenses.
6.2 We are entitled to interrupt an ongoing Service briefly if the deployed service personnel are urgently needed elsewhere (e.g. due to acute, urgent production interruptions at another customer) and an immediate performance of the Service at the Client is not necessary. We bear the additional costs resulting from such an interruption excluding any compensation claims of the Client. The interruption shall be limited to the necessary minimum.
6.3 If the services cannot be completed partially or in full for reasons the Client is responsible for we are entitled to withdraw from the contract if, in spite of a reasonable grace period, the Service cannot be continued.
6.4 If we cannot perform a Service because
a) the fault cannot be identified in spite of adherence to all the generally recognized rules of technology, or
b) a (replacement) part cannot be procured,the Client shall reimburse our costs unless we are responsible for the fact that performance of the Service is impossible.
7 Claims for defects
7.1 Claims for defects are subject to a limitation period of 12 months following acceptance. This shall not apply in cases where §§ 438 Para. 1 No. 2, 438 Para. 3, 479 Para. 1 and § 634a Para. 1 No. 2 BGB prescribe longer limitation periods and in cases of a liability for damage from injury to life, body or health as well as in cases of a liability for damage arising from an intentional or grossly negligent breach of duty.
7.2 Any defects in our services must be notified to us in writing within a reasonable period of time after performance (obvious defects) or their discovery. Otherwise the assertion of claims for defects is excluded.In addition the statutory requirements regarding inspection and complaint are applicable; we do not agree with any restriction of these statutory requirements. Furthermore we are not liable for any disadvantages and damages resulting from a delayed notification of a defect in our Service.
7.3 Compensation for damages may only be claimed by the Client only in accordance with Section 8 below.
8.1 We shall only be liable for and damage claims and reimbursement of needless expenditures - in accordance with § 284 BGB - (hereinafter referred to as "Damages") made by the Client caused by deficiencies of Services or caused by violation of other contractual or non-contractual obligations, in particular caused by tort, due to wilful intent or gross negligence. Excluded from this limitation shall be those damages that are based on injury to life, body or health, on the assumption of a guarantee (according to § 443 BGB) or of a procurement risk, the violation of material contractual obligations as well as on liability according to the Produkthaftungsgesetz (German Product Liability Law).
8.2 Damages caused by the violation of material contractual obligations are limited to damages typical for the contract that must have been foreseeable by us at the time of conclusion of contract as typical damages provided that the liability is not due to wilful intent or gross negligence and not based on injury to life, body or health, on the assumption of a guarantee or of a procurement risk as well as on liability according to the Produkthaftungsgesetz (German Product Liability Law).
8.3 Foreseeable damages typical for the contract in the meaning of Section 8.2 are:a) in each case: in maximum damages in the amount of the net remuneration of the contract affectedb) per calendar year: in maximum damages in the amount of the net turnover the Client have purchased Services from us in the preceding calendar year. In the first contract year in maximum damages in the amount of the net turnover the Client purchased Services from us until the occurrence of the event of damage.In any case typical damages in the meaning of Section 8.2 are not any indirect damages (e.g. recovery for loss of profit, damages resulting from interruption of business).
8.4 Irrespective of Section 8.3 the amount of damages to be paid by us to the Client shall be determined by having, adequately in favour of us, due regard to our economic situation, nature, scope, and duration of the business relationship, possible causative or responsible contributions by the Client according to § 254 BGB and a particularly disadvantageous situation of installation of the part supplied. Especially damages, cost and expenditures which shall be paid by us to the Client have to be in an appropriate relationship to the value of the Services being performed.
8.5 All limitations of liability shall apply to the same extent to vicarious agents.
8.6 A change in the burden of proof to your disadvantage is not associated with the provisions in this Section 8.
8.7 Material contractual obligations pursuant to Section 8.1 and 8.2 are all obligations whose fulfilment the proper performance of the contract makes possible in the first place and on whose compliance the Client regularly may trust.
9.1 Upon completion of the Service the Client shall verify its proper execution and sign an acceptance certificate provided by us. The Client may not decline acceptance due to immaterial defects.
9.2 Service personnel shall present to the Client the service notice with the travel expenses and number of work hours for signature. By signing the Client recognizes the performance of the Service in accordance with the service order. The time for the return trip shall be entered by our service manager upon arrival of the service technician.
Acceptance of the Service shall be deemed to have taken effect at the time the service notice is signed but no later than restarting and/or resumption of use of the Service Object.
10 Extended lien
When the Service is performed at our plant we shall be entitled to assert a contractual lien arising from the respective contract for the objects which came into our possession in connection with the respective contract. The contractual lien shall also apply to claims from Services performed at an earlier date in so far as they relate to the affected object.
11 Retention of Title
11.1 In so far as installed (replacement) parts became not essential elements of the Service Object we retain title of the (replacement) parts until payment in full of all obligations of the Client arising from the business relationship with us.
11.2 Linkage, blending or processing of a (replacement) part shall always take place for us as the manufacturer, but without any obligation for us. If (joint) title is terminated due to linkage, blending or processing of the (replacement) part, it is already now agreed that we shall acquire (joint) title to the new item in proportion to the value of the item supplied by us. The Client must store the items of which we have (joint) title for us at no charge to ourselves.
11.3 For goods in which we have (joint) title, the Client hereby assign to us by way of security all claims arising from resale of the items delivered to third parties or from any other cause in law in the sum of the invoice value of the (replacement) part. On demand the Client is obliged to provide us with written declarations of assignment.
11.4 Pledges and transfers by way of security are not permitted. The Client must inform us without delay of any attachment of property, distraint or any other disposals or interferences by third parties.
12 Documents - Results able as Industrial Property Right
12.1 Illustrations, drawings, calculations and any other documents relating to products, applications or projects which contain valuable know-how shall remain our property and shall be subject to our copyright even if we place them at the Client's disposal. Without our express prior consent, they may be neither reproduced nor made accessible to third parties.
12.2 In the case that in connection with the fulfilment of the Services a result will be generated that will able as Industrial Property Right all Industrial Property Rights regarding this result will belong solely to us unless the Client was significantly involved in the generation of the result. In such a case or in all other cases a result able as Industrial Property Right will be generated conclusively with the Client the Parties agree that we will receive at least a royalty-free, non-exclusive right to use the result, unrestricted in terms of time, location and content.
13 Final Provisions
13.1 Substantive German law shall apply exclusively without giving effect to its conflict of laws principles.
13.2 It is agreed that (a) place of jurisdiction for legal actions falling within the jurisdiction as regards the subject matter of the Amtsgerichte (local courts) shall be the Amtsgericht Stuttgart, Germany and (b) place of jurisdiction for legal actions falling within the jurisdiction as regards the subject matter of the Landgerichte (regional courts) shall be the Landgericht Stuttgart, Germany. We are also entitled to start a legal action at your domicile.