Valid up 01.2019 for ATM Deutschland Maschinen & Werkzeuge Vertriebs GmbH
These General Terms and Conditions apply to services, eg. Service Department installation, repair, spare part deliveries, trainings, process consultancy provided by ATM. ATM does not recognize these terms and conditions of the customer that deviate from or differ from these Terms unless expressly approved in writing. Even if the ATM provides the service without reservation knowing different or conflicting terms of the customer, this does not constitute acceptance – in such cases these Terms also apply. In individual cases, separate written agreements with the customer – including subcontracts, amendments and amendments – will take precedence over these Terms.
a. The ATM will provide the agreed service in accordance with the latest technology adopted at the time of conclusion of the contract. Use is at the customer’s risk.
b. The ATM is only responsible for the success of the contract if it has been expressly agreed. In the event that the ATM performs welding repair work, the ATM does not accept any responsibility for the main material.
c. Partial deliveries are permitted as long as deliveries are agreed.
3 Price and Payment
3.1 Basic Performance calculation
Payment is based on number of hours worked and material costs incurred, unless a lump sum price such as training and process consulting is expressly agreed. Amounts shown are in Euros excluding sales tax, which must be additionally payable as required by law.
3.2 Price for delivery
Unless otherwise agreed, prices for delivered goods (eg. spare parts, materials used) are shown as FCA (Incoterms 2020).
3.3 Time-based performance calculation
a. Calculation of performance: Performance is calculated based on uptime.
b. preparation times: Up to three hours of working time may be billed for the preparation of services and installation work.
c. Travel expenses: The ATM has the right to choose the transportation method and invoice the transportation costs.
d. Trips by plane will be invoiced based on proof of cost.
Involvement of external experts takes place only after approval by the client.
3.5 Time calculation
The customer is obliged to countersign the working hours of ATM staff on ATM’s standard form. Should the customer not countersign the form, the countersignature is deemed to have been given 2 working days after the request for countersignature unless the customer objects to the notified working hours in writing.
4 Assistance of the customer during services rendered at the customer’s premises
a. The customer is obliged to assist the ATM personnel during the service and installation phase, at his own expense. The customer undertakes to take special precautionary measures to ensure the safety of personnel and materials at the installation site. In addition, the customer is obliged to inform the technical officer of the ATM or on-site service technicians of all applicable safety rules and regulations.
b. If the repairs are the subject of service and the product to be repaired is not supplied by the ATM, the customer must notify the ATM of the
existing industrial property rights regarding the object; As long as the ATM is not defective, the customer will exempt the ATM from third party claims regarding intellectual property rights.
5 Technical assistance of the customer during services rendered at the customer’s premises
I. When required, the customer undertakes to provide technical assistance at its own expense, including but not limited to:
a. provision of a technical contact person.
b. Provision of necessary cranes, including personnel for whose services the customer will be responsible.
c. provision of necessary devices and heavy tools (lift and fork trucks, compressors) plus accessory tools and equipment currently being used (e.g. cleaning and sealing materials, lubricants, fire extinguishers etc.), including the disposal of special materials, such as oil, old lubricants etc.
d. including electrical energy, heating, lighting, water supply, necessary connections.
e. Providing adequate rooms for the storage of installation tools belonging to ATM personnel.
f. Free access for transportation of assembly parts to and from the installation site, protection of the installation site and materials from any damage, cleaning of the installation site.
g. Provision of appropriate locker rooms (sanitary facilities and lockers with heating, lighting and hot and cold water) and first aid for ATM personnel.
h. Provision of materials and all actions for setting up the object to be installed/repaired and conducting the contractually agreed test.
II. The customer must ensure that services can be started immediately after the arrival of ATM personnel and delivered without delay until acceptance / completion.
III. If the customer fails to fulfill his obligations in a timely manner, the ATM has the right – but not the obligation – to provide assistance at the customer’s expense after due notice. All other legal rights and claims of the ATM will not be affected.
6 Repairs which cannot be performed
Services rendered in connection with quotation preparation and other demonstrable efforts (fault site time equals uptime) will be billed to the customer if the repair cannot be performed for reasons for which the ATM is not responsible, in particular: the defect in question did not arise during the planned performance of service, spare parts are not available failure, the customer misses the appointment determined as defective, or the contract is terminated during performance.
a. The repair object must be returned to its original condition only at the express request of the customer for reimbursement of costs, unless the work performed is unnecessary.
b. The repair object must only be returned to its original condition at the express request of the customer in return for reimbursement of costs unless the work carried out is unnecessary.
c. Subject to the provisions under paragraph 1. above, in the case of repairs which cannot be performed, ATM is neither liable for damage to the repair object nor for infringement of contractual ancillary obligations nor for damage to the repair object itself, irrespective of the legal reason on which the customer’s claim is based.
7 Service period, transfer of risk
I. The term of service is due to the agreements between the contracting parties. Oversight by the ATM depends on the clarification of all commercial and technical issues between the contracting parties and the fulfillment of the customer’s obligations, eg. obtaining the necessary official certificates or permits or making a prepayment. Otherwise, the service time will be extended accordingly. This does not apply if the ATM is responsible for the delay.
II. Compliance with the delivery and service schedule is subject to correct and timely delivery by ATM’s suppliers.
III. If the customer is responsible for the delay, he must bear the additional costs incurred for the waiting times of the ATM personnel as well as for the required travel times.
IV. The customer determines a reasonable performance period after the payment date – taking into account legal exemptions – to the ATM, and if this period is not complied with, the customer has the right to terminate the contract within the framework of legal provisions. The customer undertakes to notify within a reasonable time whether he will use his right of withdrawal if requested by the ATM. Other claims arising from delays in delivery and service will be governed exclusively by section X of these Terms.
V. The risk of accidental deterioration or loss passes to the customer upon delivery. If the delivery or acceptance is delayed for reasons for which the ATM is not responsible, the risk passes to the customer and at the same time, written notification of the delivery readiness or that the services have been rendered/completed or that the services are ready for acceptance.
8 Acceptance of works services
I. The customer is obliged to approve the works as soon as he receives the information that the works have been completed and the services have been performed without major faults. The acceptance protocol must be signed by the customer and the ATM.
II. If acceptance is delayed without fault of ATM, acceptance is granted as soon as notice has been given that the services are ready for acceptance. As of acceptance, ATM shall have no further liability for visible defects to the extent that the customer has not reserved the right to assert such a particular defect.
9 Material defects, legal defects
I. With the exception of all other requests of the customer, the ATM is responsible for the defects in its deliveries/services, without prejudice to Article X. The ATM has the right of withdrawal twice.
II. ATM is not responsible for the consequences of changes or maintenance that are not duly made by the customer or third parties without the approval of the ATM. The same may be due to improper or misuse, faulty installation or commissioning by the customer or a third party, natural wear and tear, faulty or negligent use, improper maintenance, unsuitable equipment, faulty construction work, unsuitable foundations, chemical, electrochemical or also applies to electrical effects – provided it’s not the ATM’s fault.
III. The customer is obliged to notify the ATM in writing of the detected defects without delay. ATM undertakes to replace or repair defects within sufficient time after written notice. All expenses for necessary provisions are borne by the customer.
IV. Warranty claims are excluded in the event that:
a. the customer, without reason, denies any replacement or repair work by ATM,
b. the customer replaces or repairs the defect either himself or by a third party without granting ATM the possibility for the replacement or the repair, or
c. the defect is based on a technical description provided by the customer, an order of the customer or on support material or assistance from other companies provided by the customer.
V. If the ATM – taking into account legal exceptions – allows a reasonable period of time to be inconclusive, the customer is entitled to a reduction in the fee under legal provisions. The customer may terminate the contract only if, despite the discount, it is proven that the work is not of interest to the customer.
VI. If ATM – taking account of the statutory exceptions – allows a reasonable deadline it has been set to fruitlessly expire, the customer has the right within the framework of the statutory provisions to reduce the remuneration. The customer can only rescind the agreement if it can be proven that the work is of no interest to the customer, despite discount.
VII. Further claims shall be governed exclusively by section X. of these Terms.
10 Liability of ATM, exclusion of liability
I. ATM shall not be liable, whether based on contract, tort, strict liability, indemnity or otherwise, for any indirect or consequential loss or damage, such as but not limited to loss of use, loss of production, or loss of profit or revenue, loss of interest costs, loss of information or data. ATM`s overall liability for the breach of its contractual obligations, for delay and for other damages including indemnifications if any which might occur out of or in connection with these Terms shall be limited to and based on the provisions stated within these Terms, only, and any and all statutory remedies shall be excluded, and shall in the aggregate not exceed 10% of the total net contract price in the aggregate.
II. However, the aforementioned limitations of liability shall not apply in the event ATM acted with willful misconduct or causes personal injury.
III. All further damage claims are excluded.
11 Statute of limitations
I. All claims of the customer – whatever legal ground – will expire within 12 months from the date of acceptance.
II. If the defects are corrected, the statute of limitations begins again, but expires no later than 18 months from the start of the limitation period in accordance with paragraph 1. given above.
12 Intellectual property, industrial property rights, use of software
I. All intellectual property rights remain the property of ATM. ATM grants the Customer the right to use any non-exclusive, non-transferable industrial property right, including samples, cost estimates, drawings and similar information of material or moral nature. It is necessary for the use of the delivered goods/services.
II. Drawings, models, templates, training documents, etc. remains the exclusive property of the ATM. They are entrusted only for the agreed purpose and cannot be used for any other purpose. Copies or other reproductions may be made only for the agreed purpose. The originals or copies cannot be given to third parties and cannot be used in any way.
III. If the software is included in the scope of delivery, the customer is given the right to use the non-exclusive software and documentation. The software is provided for use in the intended delivery object. Use of the software on more than one system is prohibited. The customer may copy, revise, translate or decompile the object code of the software only to the extent permitted by law (German Copyright Law – UrhG Section 69 et seq.). The customer undertakes not to remove or change the manufacturer’s information – in particular copyright references – without the express prior consent of the ATM.
All other rights to the software and its documentation, including copies, are reserved by ATM or the software provider. Sub-licensing is not allowed.
13 Retention of title / lien
I. ATM shall retain title for all items delivered until receipt of all payments originating from the delivery agreement – also for any additional ancillary services owed.
II. The customer cannot sell, pledge or show the delivered product as collateral. In case of foreclosure, confiscation or other dispositions by third parties, the ATM must be notified immediately.
III. In case the customer violates the contract, especially in default, the ATM has the right to take back the product delivered after giving a warning and the customer is obliged to deliver the product.
IV. Due to the fact that the ATM reserves its ownership, it can only request the return of the delivered product in case of withdrawal from the contract.
V. An application to file a bankruptcy action against the customer’s assets entitles the ATM to withdraw from the contract and demand the immediate return of the delivered product.
VI. As a result of its request under the repair contract, ATM has the right to lien on the object for repair, which is in the possession of the Customer pursuant to the contract. To the extent that the lien is related to the object of the repair, it may also be claimed for claims arising from previous work, deliveries of spare parts and other services. The lien will only apply to other claims arising from the business relationship, provided they are undisputed or adjudicated by a court.
14 Force majeure
Each contracting party will be exempt from its obligations to the extent and if it is unable to fulfill a contractual obligation due to force majeure. Force majeure is any event that is not related to the activity of the contracting party and involves an inevitable force acting from outside, such as wars, civil wars, (commercial law) embargoes, import or export bans, political unrest, epidemics, natural disasters. and events to the extent that they relate to unforeseen and unavoidable official orders, strikes and lockouts, as well as proposed means of transport. A force majeure may also be the interruption of raw material and energy supply. The party alleging force majeure must inform the other party in writing without delay. If the force majeure lasts more than 90 consecutive calendar days, either of the contracting parties shall have the right to terminate the contract due to the unfulfilled part of the contract.
15 XV. Export control, insofar as delivery is outside Europe
Offers and order confirmations provided by ATM are subject to approval by the German Federal Office for Economic and Export Control (BAFA) and any additional regulatory approvals required.
I. The customer has the right to withhold payment only as long as their counterclaim is undisputed or legally binding.
II. The client has the right to assert the right to set off counterclaims from other legal relationships only as long as they are undisputed or legally binding.
III. The customer can assign his receivables against the ATM only with the approval of the ATM.
IV. If any provision of these Terms is invalid or unenforceable or becomes invalid or unenforceable after the conclusion of the contract, the validity of the remaining provisions shall not be affected. The invalid or unenforceable provision will be replaced by the invalid or unenforceable provision with a valid and enforceable provision that has the closest effect to the economic objectives pursued by the ATM.
17 Applicable law, place of jurisdiction
All Terms and all obligations contained herein and in connection herewith shall be governed and construed in accordance with the substantive law in force exclusively in Saarbrücken Deutschland, with the exception of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
All disputes will be finally resolved in accordance with the Arbitration and Conciliation Rules of the Paris International Chamber of Commerce (“Rules”) by three arbitrators appointed in accordance with the Rules. The arbitration award will be final and binding on both parties. Arbitration procedures will be held in Saarbrücken, Germany. Where the rules are void, the procedural laws of that place will apply. The Arbitration Tribunal decides on the litigation costs to be borne by the unsuccessful party, including the winning party’s attorney’s fees. The arbitration will be held in the English language.