General Commissioning, Service and Maintenance Terms and Conditions (GCSMTC 2020)
1. Scope and conclusion of contract
1.1 These terms and conditions shall apply to all maintenance and service assignments (“services”) as well as to all deliveries of spare and wear parts (“deliveries”) to the principal by Gebr. Kemper GmbH + Co. KG (“Kemper” or “us”) as contractor.
1.2 Other terms and conditions and/or general terms and conditions of the principal or third parties, regardless of whether they contradict or supplement these terms and conditions, shall not become part of the contract, even if we do not expressly object to them.
1.3 Offers without a deadline for acceptance shall be non-binding. The order shall only become binding for us after our written or electronic order confirmation.
1.4 Any amendments to the contents of the contract shall require written form to be effective. This shall also apply to a waiver of this written form requirement.
1.5 We shall be entitled at any time to recall our deployed personnel and replace them by personnel with similar qualifications.
1.6 The documents belonging to our offer, such as illustrations, drawings, specified weights and dimensions, shall only be approximate unless they are expressly designated as binding.
1.8 We shall have the right to execute any order in cooperation with subcontractors without the principal's consent.
1.9 In addition, the General Terms and Conditions of Gebr. Kemper GmbH + Co. KG shall apply, which can be viewed on https://www.kemper-olpe.de/en/meta-navigation/agb/; however, the provisions of these General Commissioning, Service and Maintenance Terms and Conditions shall take priority.
2. Performance time for service and maintenance (services)
2.1 The dates stated shall be non-binding, unless otherwise agreed. Compliance with the performance time shall require that all technical and organisational issues have been clarified. If this is not the case, the performance time shall be extended by a reasonable period of time.
2.2 If the principal is late to deliver or provide the parts to be processed or used or other (technical) documents for the performance of the service, a new completion date shall be agreed. The same shall apply if the parts to be processed are not made freely accessible on the principal's premises. In the case of services that we perform in our works or have performed by a subcontractor, the respective workshop capacity utilisation shall, in particular, be taken into account. In this respect, the principal shall have no claim to prioritised treatment.
3. Remuneration and cost estimate
3.1 Remuneration shall be agreed separately. If, in an individual case, a particular remuneration has not been specified or such specification is not possible, the service shall be billed on a time and material basis, according to our usual hourly rates.
3.2 Our cost estimates shall be non-binding as long as they have not been expressly designated as binding - in text form. If we should find, while performing the service, that its performance is not possible without substantially overrunning the non-binding cost estimate, we shall notify the principal thereof without delay. A substantial overrun of the non-binding estimate shall be deemed to have occurred if it is exceeded by at least fifteen per cent (15%).
3.3 If we notify the principal of a substantial overrun of the cost estimate, it is up to the principal to decide whether it wishes us to continue performing the service under these circumstances. If the principal does not wish to adhere to the performance of the service due to the additional costs, the principal may terminate the contract within two (2) weeks after receipt of notification. If the principal exercises its right of termination, it shall be obliged to pay us the agreed remuneration, minus any expenses saved, and to reimburse any expenses not included in the remuneration. If the principal does not respond immediately, but at the latest within three (3) working days after receipt of the notification, we shall have the right to withhold further performance of the services - until an agreement has been reached on their continuation and the bearing of costs. The contractually agreed performance dates shall be adjusted accordingly, taking into account in particular the workshop capacity utilisation concerned. In this respect, the principal shall have no claim to prioritised treatment.
4. Terms of payment
4.1 Payment of the remuneration for the service rendered by us shall, unless otherwise agreed, become due on acceptance of the services and shall be effected without deductions within fourteen (14) calendar days after the invoice date.
The full and unconditional receipt of the payment on our account shall be decisive for its timeliness and fulfilment.
4.2 If the agreed payment deadlines are exceeded, we shall be entitled to demand interest according to the statutory rate from the day on which the deadline is exceeded, without the need for a reminder. This shall not rule out the assertion of a further claim for damages. We can withdraw from the contract as soon as a reasonable grace period set by us has fruitlessly expired.
4.3 The principal shall only have the right to withhold payments or set them off against counterclaims to the extent that such counterclaims are undisputed, established by due legal process or ready for adjudication.
5. Additional duties of the principal
5.1 The principal shall be responsible, in particular, for construction, scaffolding and assembly work, including the necessary safeguards, unless expressly agreed otherwise. The principal shall complete all construction and other preparatory work and ensure accessibility to the work area and to the systems to be serviced so that our personnel can start work immediately upon arrival and perform it without interruption. In particular, the access routes and assembly sites must be levelled and cleared at floor level and suitable for the delivery of loads. If other companies are working in the property, the principal shall be responsible for the coordination of all activities in the property.
5.2 The principal shall provide us with all technical documents relating to the performance of the service in good time.
5.3 For a swift and full implementation of the services the following conditions must be met:
• a competent contact person of the operator with knowledge of the site must be available
or
• a string diagram (or - after prior consultation - similar drawing) with component and instal-lation sites must be available.
• the commissioning report or the last maintenance report should be available.
• the desired operating mode to be inspected (time, temperature, volume) must be availa-ble.
5.4 We shall be entitled to cancel the maintenance assignment if auxiliary personnel is necessary but not available and/or if work areas are inaccessible (see 5.1 above) and to charge the costs incurred.
5.5 After we have performed the maintenance, the principal undertakes to sign off the perfor-mance and duration of the services by us on timesheets or other documentation slips, for the purpose of documentation and confirmation.
6. Acceptance of the services/delay in acceptance by the principal
6.1 On completion of the work or completion of the services in accordance with the contract, the principal shall be obliged to accept the work or services (section 640 (1) of the German Civil Code (Bürgerliches Gesetzbuch – BGB)). Use without objection of the serviced or repaired system or payment by the principal shall be deemed to be acceptance of the services, unless one or more defects are reported at the same time.
6.2 Work shall also be deemed accepted if we have set the principal a reasonable deadline for acceptance after completion of the work and the principal has not refused acceptance within this deadline, stating at least one defect (section 640 (2) of the German Civil Code. If the principal is a consumer, the legal consequences of sentence 1 shall only apply in accordance with section 640 (2) sentence 2 of the German Civil Code if we have informed the principal, together with a request for acceptance, of the consequences of an acceptance which has not been declared or which has been refused without stating defects; such information must be provided in text form.
6.3 If we have performed the services at our works or at our subcontractor's works and if the principal is in default of acceptance, we shall be entitled to store the items affected by the services on our premises or on the premises of a third party at the principal's risk and expense.
7. Reservation of title
7.1 We shall retain title to the items delivered by us until receipt of the full and unconditional payments under the respective contract with the buyer. From the time of delivery until the transfer of title, the buyer shall keep the delivered items for us free of charge and insure them at their full value against any impairment. The buyer may neither sell nor pledge the delivered items nor assign them as security. The buyer shall notify us immediately of any seizure, confiscation or other impairment of our rights by third parties, submitting and providing to us the documents and information required to assert our rights. Regardless of this, the buyer/principal must inform the third parties in advance of our rights to the delivered goods subject to the reservation of title.
7.2 Our treatment and processing of the principal’s parts shall always be performed for the principal. The parts shall remain the principal’s property at all times. If the service is not performed in our works or in the works of our subcontractors, the principal shall ensure that wastes produced during performance of the service are disposed of in an environmentally sound manner.
7.3 If we manufacture new items for the principal or use items purchased by us, we shall retain title thereto until receipt of the full, irrevocable remuneration. If the principal provides us with materials for use, this shall only apply if the used materials and items that are our property are to be regarded as the main item.
8. Force majeure
8.1 In cases where one party is affected by force majeure (including strike and lockout in third-party companies), each party shall be entitled to suspend the performance of their contractual obligations without being liable for damages and/or reimbursement of expenses. However, the above provisions shall not apply to claims for damages of the principal arising from injury to life, body or health or from intentional or grossly negligent breaches of obligations by the vendor or the vendor’s vicarious agents.
The other contract partner shall be notified of the impediment to performance promptly and without undue delay.
Force majeure within this meaning shall be deemed to have occurred in the case of an event external to the business, externally caused by elementary forces of nature or by actions of third parties, which is unforeseeable according to human insight and experience, cannot be prevented or rendered harmless by economically acceptable means, even by the utmost care reasonably to be expected under the circumstances, and is not to be accepted by the business operator even due to its frequency in the business.
8.2 If contractual performance is delayed by more than four (4) months for reasons of force majeure as defined above, and if the parties have not agreed on a new basis for continuing contractual performance at the end of the delay, either party may, after this period and if the cause of non-performance continues to exist, give written notice of termination of the contract to the other party or, if the legal requirements are met, withdraw from the contract.
However, our claim to the (pro-rata) contractual consideration (payment) for the deliveries and services rendered up to the occurrence of the impediment, plus expenses, shall remain effective, unless the partial performance already rendered is objectively no longer of economic interest to the principal due to the delay caused by force majeure. The procedural burden of proof for such a loss of interest shall be on the principal.
In this case, the principal can demand the reimbursement of payments already made to which we are not entitled according to the above provisions.
8.3 Any payments to be refunded must be effected by both parties promptly and without undue delay.
9. Liability for defects
The following liability for defects shall apply to material defects and defects of title, to the exclusion of further claims - without prejudice to clause 12:
9.1 Material defects
9.1.1 Any defect shall be reported to us in writing without delay.
Items delivered by us shall be examined with care immediately after delivery to the principal or to the third party designated by the principal. In respect of obvious defects or other defects which would have been detectable by an immediate, careful inspection, the items shall be deemed to have been approved by the principal if we do not receive a written notice of defects within seven (7) working days of delivery. In respect of other defects, the delivered items shall be deemed to be approved if the notice of defects is not received by us within seven (7) working days after the point in time when the defect was detected; however, if the defect was already detected by the principal at an earlier point in time during normal use, this earlier point in time shall be decisive for the commencement of the period for giving notice of defects. At our request, a rejected delivered item shall be returned to us carriage paid. In the event of a justified notice of defect, we shall reimburse the costs of the most favourable mode of transport; this shall not apply insofar as the costs are increased because the delivered item is located at a place other than the place of intended use.
In the event of justified notices of defect, we shall remedy the defect at our discretion and at our expense, either by performing new services or by remedying the defect. However, if and to the extent that the principal is a consumer within the meaning of section 13 of the German Civil Code, the choice shall be at the principal’s discretion.
Replaced items shall become our property.
9.1.2 We shall accept no liability for defects in particular for unsuitable or improper use, faulty assembly (unless assembly was performed by us), commissioning or unsuitable or improper maintenance and servicing by the principal or third parties, natural wear and tear, faulty or negligent handling (in particular excessive stress), unsuitable operating materials, replacement materials, defective construction work, unsuitable building ground, chemical, electrical or electrochemical impacts, unless they are attributable to a fault on our part. If the principal or a third party carries out improper subsequent repairs or if changes are made without our prior consent, we shall assume no liability for the resulting consequences.
9.1.3 In the case of production according to drawings provided by the principal, we shall only be liable for execution according to the drawings and not for defects based on parts provided by the principal and/or a construction design prescribed by the principal.
9.1.4 The principal shall grant us the necessary time, sufficient opportunity and access to the defective items to perform all the necessary rectification work. We may refuse to remedy the defect if it requires disproportionate effort or expense.
9.1.5 The warranty shall become void if the principal modifies the delivered item or has it modified by third parties without our consent and the rectification of defects is thereby rendered impossible or unreasonably difficult. In any case, the principal shall bear the additional costs of remedying the defect resulting from the modifications.
9.1.6 We shall not be liable for the suitability of the contractual objects for a purpose expected by the principal (but not expressly agreed in the contract) after the performance of our services. We solely guarantee the fulfilment of the expressly agreed technical condition as agreed in the technical description of a contract.
9.2. Defects in title
9.2.1 If, due to our fault, the use of the object of the performed services leads to a legally established infringement of industrial property rights of third parties, we shall, at our expense, either – at our discretion – procure for the principal the right to further use or modify the object of the performed services in a manner that is reasonable for the principal in such a way that the industrial property rights are no longer infringed.
9.2.2 Our obligations stipulated in clause 9.2.1 shall be final without prejudice to clause 13 in the event of infringements of property rights. They shall exist only if:
- the principal informs us without delay of any asserted infringements of industrial property rights,
- the principal supports us in defending the asserted claims or enables us to perform the modifications in accordance with clause 9.2.1,
- all defensive measures, including out-of-court settlements, are reserved to us, the defect of title is not based on an instruction of the principal and
- the infringement of the property right has not been caused by the fact that the principal has arbitrarily changed the object of the performed service or has used it in a manner not in accordance with the contract.
9.3 Limitation period for claims for defects
The limitation period for claims for defects shall be twelve (12) months after acceptance. If the performance of services is delayed for reasons for which we are not responsible, the limitation period shall amount to a maximum of fifteen (15) months after notice of completion of our processing of the parts or completion of the services. If we perform our services on a building and thereby cause its defectiveness, the statutory periods shall apply. Notwithstanding the aforementioned periods, the limitation period for liability for defects shall be extended by the duration of any rectification work. These above provisions shall not apply to claims for damages by the principal due to defects. Such claims for damages shall be governed exclusively by the provisions under clause 12 of these terms and conditions.
9.4 Warranties
The principal shall receive no warranties in the legal sense from us.
10. Exclusion / expiry of warranties as to functions and liability / reversal of burden of proof
Warranties and liability shall expire in the following cases:
• if the principal has the installation, maintenance, servicing or repair work interfered with itself or by a third party, non-approved specialist or tolerates installation, maintenance, servicing or repair work itself or by a third party, non-approved specialist;
• if the principal causes or tolerates the installation or connection of the Kemper Hygiene System with non-approved parts;
• in the case of faulty work performed by third parties which causes the defect in question;
• if the principal refuses a necessary repair, maintenance or the necessary replacement of a spare part in the course of the maintenance work or the performance of prescribed maintenance;
Reversal of the burden of proof:
• Contrary to statutory provisions, the principal shall bear the burden of proof for a defect which we are responsible for if the principal fails to furnish evidence at our request that the prescribed maintenance work has been duly and properly performed at the pre-scribed intervals.
11. Software
11.1 To the extent that software is included in our scope of services, we reserve all proper-ty rights and copyrights to the software. The principal shall be granted a non-exclusive, non-transferable and non-sublicensable right to use the delivered software including its documen-tation for the operation, repair and maintenance of the objects of the performed services. Use for other purposes shall be prohibited.
11.2 The source code shall not be released. The principal shall neither have the right to reconstruct the source code, nor to decompile the software, nor to modify or duplicate the software and the documentation belonging to it. The principal undertakes not to remove manufacturers' details - in particular copyright notices - or to alter them without our prior written consent.
11.3 Liability for material defects for the software shall only apply to reproducible defects. Defects shall be reported to us without delay and shall be remedied at our discretion and at our ex-pense by rectification or subsequent delivery. The limitation period shall begin when the software is put into use and shall be twelve (12) months. The aforementioned limitation peri-od shall be extended by the duration of any work for the rectification of defects.
11.4 We shall accept no liability for damages resulting from inappropriate use, improper handling or other impacts beyond our control.
12. Liability for damages due to fault
12.1 Our liability for damages, irrespective of the legal grounds, in particular due to impossibility, delay, defective or incorrect delivery, breach of contract, violation of duties during contractual negotiations and tort, shall be limited in accordance with this clause 12, insofar as fault is involved in each case.
12.2 We shall not be liable in the case of ordinary negligence on the part of our executive bodies, legal representatives, employees or other vicarious agents, unless a breach of material contractual obligations is involved. Material contractual obligations shall be the obligation to deliver and install the delivered item in due time, its freedom from defects of title as well as such material defects that impair its functionality or usability significantly, as well as consulting, protection and care obligations that are intended to enable the principal to use the delivered item in accordance with the contract or are intended to protect the life and limb of the principal's personnel or to protect the principal's property from significant damage.
12.3 Insofar as we are liable on the merits for damages in accordance with the above clause 12.2, this liability shall be limited to damages which we foresaw as a possible consequence of a breach of contract at the time the contract was concluded or which we should have foreseen if we had exercised due care. Indirect damages and consequential damages resulting from defects of the delivered item shall also only be eligible for compensation if such damages are typically to be expected when the delivered item is used for its intended purpose.
12.4 The above exclusions and limitations of liability shall apply to the same extent in favour of our executive bodies, legal representatives, employees and other vicarious agents.
12.5 Insofar as we provide technical information or act in an advisory capacity and this information or advice is not part of the contractually agreed scope of services owed by us, this shall be done free of charge and to the exclusion of any liability.
12.6 The above limitations under this clause 12 shall not apply to our liability for wilful misconduct, for guaranteed characteristics, for injury to life, body or health or under the German Product Liability Act (Produkthaftungsgesetz).
13. Confidentiality and industrial property rights
13.1 If we produce detailed processing documents based on general processing notes of the principal, they shall remain our exclusive property. Except in special (urgent) cases and in the event of our insolvency, the principal shall not be entitled to the surrender of these documents.
13.2 All drawings, documents and any other information shared - directly or indirectly, verbally or in writing - between the parties in the context of this contract or the initiation of the contract shall be used solely for the operation, repair and maintenance of the object of the performed services, shall be treated as strictly confidential and may be disclosed to third parties only with the express prior consent of the other party. This obligation shall apply for a period of ten (10) years from the initiation of the contract.
13.3 Both the principal and we shall be obliged to commit all staff members who have access to the aforementioned information to keep this knowledge secret and not to use it themselves or make it accessible to third parties. This obligation shall be imposed on staff members not only for the duration of their service, but also for the period after they leave the company.
13.4 All industrial property rights to our cost estimates, drawings and other documents shall remain with us and may not be exploited or made accessible to third parties without our prior written consent. The same shall apply to other technical details arising from the services or disclosed in the offer, in other correspondence or in the negotiations. No provision of these terms and conditions may be construed as creating rights of any kind to our industrial property rights for the principal.
13.5 If the principal hands over parts or drawings to us which we are to process or use for processing, the principal warrants that it is permitted to allow us to process or use such parts or drawings - free of third-party rights. The principal shall indemnify us - upon first request - against claims of third parties arising from the violation of secrecy obligations, industrial property rights or other rights of third parties.
13.6 The parties already acknowledge these obligations by entering into contract negotiations, irrespective of whether a contract is concluded or not.
14. Miscellaneous
14.1 These terms and conditions and all contracts concluded under them shall be governed by German law.
14.2 If the principal is a merchant, a legal entity under public law or a special fund under public law or has no general place of jurisdiction in the Federal Republic of Germany, the place of jurisdiction for any disputes arising from the business relationship between us and the principal shall be - at our discretion - the competent court at our registered place of business or the competent court at the principal’s registered place of business. In such cases, however, the exclusive place of jurisdiction for any legal action brought against us shall be the competent court at our registered place of business. This provision shall apply without prejudice to mandatory statutory provisions on exclusive places of jurisdiction.
15. Privacy policy
The processing of personal data may be necessary for the performance of this order. The pro-cessing of this personal data shall then be based on Art. 6 (1) (b) or on Art. 6 (1) (f) GDPR. Kemper’s complete privacy policy can be viewed on https://www.kemper-olpe.de/en/meta-navigation/datenschutz/. As a responsible company, Kemper takes the protection of personal data and the rights of data subjects very seriously. The rights to which the data subject is enti-tled can also be viewed at any time on the above link and exercised if desired.
Last updated: September 2020