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1. General - Scope - Verbal Collateral Agreements

1.1 All services which we perform on the basis of a separate contract in connection with the delivered products beyond the fulfillment of justified warranty claims (e.g. services, servicing, commissioning support, assembly, repair, troubleshooting, testing, training, consulting, appraisal and advisory 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, or if the Client refers to the validity of his terms of business in his enquiry, his order or otherwise in connection with the execution of the contract.

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 is not authorized to make verbal collateral agreements.

2. Conclusion of Contract

Unless expressly 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 The deployment time (travel and service time) of our service personnel and the travel expenses incurred will be charged during the regular service hours, which we will inform the Client of at any time upon request and which are available at www.balluff.com/en/de/contacts/sales-and-service/, according to the currently valid price list, which we will also inform the Client of at any time upon request.

For working hours outside the regular service hours, we charge surcharges on the above-mentioned remuneration rates according to the currently valid price list, which we will provide the Client with at any time on request.

3.3 Travel time and travel expenses for the journey to the service location will be calculated from the plant which the respective service personnel is associated with and from there back to the respective plant.

3.4 Lodging and board
- In-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 in Section 3.1 to 3.4 mentioned rates do not include value added tax (VAT); the appropriate VAT will be added separately.

3.6 If necessary (replacement) parts and/or necessary accessories 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 and accessories will be invoiced according to the Price List effective at the time the agreement was concluded, which we will inform the Client of at any time upon request.

3.7 Terms of payment: The costs for Services are due for payment within 14 days of receipt of an invoice without deduction.

3.8 A set-off of the Client's claims against our claims is only permissible if the Client’s claims have been recognized by us, are undisputed or have been finally legally determined or are in a close mutual relationship with our claim.

3.9 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.

3.10 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 regular service 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 regular service 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 Services 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. The statutory rights and claims of both parties remain unaffected.

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), wars, revolutions, embargos, pandemics, epidemics, fires, earthquakes, floods, storms, explosions or other natural disasters) 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 Services within a reasonable time the Client and we may withdraw from the agreement or from the unfinished part of it. The same shall also apply in the event of subsequent impossibility of performance of the contract for which we are not responsible. Damage claims arising from such a withdrawal are not permitted. If one party intends to withdraw from the contract for the aforementioned reasons, it must inform the other party immediately.

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 Services 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 Client must ensure that the working conditions in his company are such that our service personnel can work in compliance with all regulations, in particular those concerning accident prevention.

5.2 If claims are made against us by a third party (in particular by our service personnel) due to a violation of such regulations, in particular for accident prevention, the Client is obliged to indemnify us from these alleged or actual claims, unless the Client is not responsible for the violation of duty. Insofar as the Client is obliged to indemnify us in accordance with the above sentence 1 of this section 5.2, he shall also reimburse us for all damages and the necessary costs and expenses incurred by us from or in connection with the third-party claim.

5.3 The Client shall keep functional all technical equipment necessary to perform the Services 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 personnel to be supported on site by other experts by using an internet connection. For this purpose, the mobile network connection used by us is used together with usual software (e.g. Skype, Microsoft Teams, TeamViewer Pilot, etc.). If the mobile network connection could not be used at the location or could only be used with disturbances, the Client is obliged to provide and maintain the necessary telecommunication equipment free of charge (in particular LAN or WLAN) and grant us the access rights exclusively for and during the service assignment. We have the right to use and transmit pictures, sound and video data and/or data of the Service Objects and their installation situation, which are used exclusively for diagnostics.

5.4 The Client shall make available any technical personnel necessary for the proper operation and for the recommissioning of the Service Objects.

5.5 If required an interpreter shall also be provided.

5.6 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.

5.7 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 and/or accessories 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 Services as soon as possible, however only against reimbursement of additional expenses.

6.2 We are entitled to interrupt ongoing Services 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 Services at the Client is not necessary. We bear the additional costs resulting from such an interruption excluding any claims for damages 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 Services cannot be continued.

6.4 If we cannot perform Services 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 Services is impossible.

7. Claims for defects

7.1 If the object of the Services is a work service, any possible 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 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 subsequent performance by us shall only be made as a matter of goodwill and without recognition of any obligation to perform, unless we have agreed otherwise with the Client or we have expressly recognized a claim for subsequent performance against the Client before or in connection with the subsequent performance.

7.3 Any defects in our Services must be immediately notified to us in writing after performance (obvious defects) or their discovery. Otherwise the assertion of possible claims for defects is excluded.

7.4 In addition the statutory requirements regarding inspection and complaint are applicable; we do not agree with any restriction of these statutory requirements.

7.5 Furthermore we are not liable for any disadvantages and damages resulting from a delayed notification of a defect in our Services.

7.6 Compensation for damages may only be claimed by the Client only in accordance with Section 8 below.

8. Liability

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 willful 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 affected
b) 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.

8.4 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).

8.5 Irrespective of Section 8.3 and Section 8.4 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. 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.

8.6 All limitations of liability shall also apply to the same extent in the event of breaches of duty by persons for whose fault we are responsible under statutory provisions.

8.7 A change in the burden of proof to your disadvantage is not associated with the provisions in this Section 8.

8.8 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. Acceptance

9.1 Acceptance of our Services is generally not required, unless the Services constitute work services. In this case the following applies: As soon as we give notice of completion of the Services the Client must immediately accept the Services in the agreed form. The acceptance must be confirmed in writing on the acceptance protocol. Notwithstanding the statutory provisions, the Client may not refuse acceptance if the defect is insignificant.

9.2 Service personnel shall present to the Client a suitable activity record for signature. By signing the Client recognizes the performance of the Services in accordance with the service order. The time for the return trip shall be entered by our service manager upon arrival of the service personnel.

10. Extended lien

When the Services 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 and accessories became not essential elements of the Service Object we retain title of the (replacement) parts and the accessories until payment in full of all present and future obligations of the Client arising from the business relationship with us. This also applies if the remuneration has been paid for certain Services designated by the Client. If the retention of title is linked to special conditions or formal requirements in the country of the Client, the Client is obliged to inform us of this and to ensure fulfilment at his own expense.

11.2 Linkage, blending or processing of a (replacement) part and/or accessories 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 and/or accessories, 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 or accessories. 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 request to open insolvency proceedings, attachment of property, distraint or any other disposals or interferences by third parties.

12. Documents - Results able as Industrial Property Right

12.1 Unless expressly agreed otherwise, 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 The place of performance for all obligations from the contractual relationship is Neuhausen a.d.F, Germany.

13.2 Substantive German law shall apply exclusively without giving effect to its conflict of laws principles.

13.3 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.

 

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