General Terms and Conditions

General – Scope of Validity

1. The following general terms and conditions for service and maintenance / repair work (hereinafter referred to as “Service Conditions”) shall apply to all services and maintenance / repair work (hereinafter referred to as “Maintenance / Repair” or “Service Works”) provided by KBW Blickle Hydraulik GmbH on behalf of a third party (hereinafter referred to as “Customer”). These service works mainly concern inspections, repair and maintenance work, commissioning and overhaul works.
2. Our service conditions apply exclusively; we do not recognize the customer´s conflicting conditions or those that deviate from our conditions unless we have consented to their application previously in writing. If we unconditionally perform maintenance / repair although we are aware of the customer´s general terms and conditions of business then there will be no acceptance of conflicting or deviating conditions of the customer. Even in this case, our service conditions apply exclusively.
3. Our service conditions shall also be a basic agreement for all future transactions with the same customer without our being obliged to refer to them again in each individual case.
4. Individual agreements reached with the customer in individual cases (including side agreements, additions and amendments) shall in all cases have precedence over these service conditions. A written contract or our written confirmation shall be decisive for the contents of such agreements.
5. Legally relevant declarations and notifications, which are to be submitted towards us by the customer after conclusion of the contract (e.g. setting of deadlines, notifications of defects, declaration of cancellation or reduction), require the written form in order to be valid.
6. Our service conditions apply only for companies, public law bodies or public special funds as defined by section 310 (1) of the German Civil Code (BGB).

Cost Information

1. At the request of the customer and/or where possible we shall state the expected repair / maintenance price when the agreement is concluded, otherwise the customer is entitled to set cost limits. If the repair / maintenance cannot be carried out at this price or if we consider further work necessary whilst carrying out the performance of said repair / maintenance, the customer´s consent shall be sought if the given costs will be exceeded by more than 20%.
2. If binding prices are desired before the repair/maintenance is carried out, the customer shall request such explicitly. This kind of cost information shall – unless otherwise agreed – only be binding if given in writing. The cost estimate shall be subject to payment only if this has been agreed with the customer in each individual case.
3. The services rendered in connection with the provision of a cost estimate and any further time spent which must be proven (e.g. for dismantling work and error location time) shall be invoiced to the customer if the repair / maintenance is not carried out for reasons for which we are not responsible. The customer shall not be charged for the preparation of a cost estimate, where such preparation work is of use in the course of the repair / maintenance work.
4. If the customer does not place an order for repair / maintenance work after submitting a cost estimate, we must return the object of repair / maintenance to its original condition at the expressed request of the customer in return for reimbursement of the costs unless the work carried out was unnecessary.

Prices and Payment

1. We shall be entitled to demand a reasonable advance payment from the customer at the time the contract is entered into.
2. In invoicing the repair / maintenance, the prices for parts and materials used and other special services as well as prices for work services, travel and transport costs shall be listed separately. If the repair / maintenance work is carried out on the basis of a binding quote reference to the quote shall be sufficient whereby only deviations with respect to the scope of performance shall be listed separately.
3. All prices are quoted before statutory value added tax which is listed separately.
4. Payment shall be made in cash upon acceptance and hand-over of the object of repair / maintenance or within 14 days after the receipt of our corresponding invoice to the specified bank account, without any deductions.
5. The customer shall only have a right to retain payments or to offset with counterclaims if his counterclaims have not been disputed, have been determined by a court of law or are ready for a decision in any proceedings pending at law.

Cooperation and Technical Assistance by the Customer in Connection with Repair / Maintenance Work outside FMB-Blickle Factory

1. The customer shall provide assistance to our repair / maintenance personnel at his expense in connection with the performance of the repair / maintenance.
2. The customer shall take any special measures necessary to protect persons and objects at the place of repair / maintenance. He shall also inform our repair / maintenance supervisor of existing special safety regulations to the extent that these are of significance to the repair / maintenance personnel. He shall inform us of infringements of safety regulations by our repair / maintenance personnel.
3. If necessary, the customer shall undertake to provide assistance to us or our repair / maintenance personnel, in particular to:

   • provide suitable helpers for effecting the repair / maintenance; these helpers shall follow the instructions of our repair / maintenance supervisor. Should defects or damage be incurred by the helpers due to instructions given by our repair / maintenance supervisor, sections IX and X of these service conditions shall apply.
   • provide the necessary devices and tools.
   • provide power, heating, lighting, water, including the required connections.
   • provide the required dry and lockable rooms for the storage of tools belonging to the repair / maintenance personnel as well as burglar-proof common rooms and work rooms including first-aid for the repair / maintenance personnel.
4. The before mentioned assistance by the customer must guarantee that the repair / maintenance is commenced without undue delay after arrival of the repair / maintenance personnel and can be carried out without delay until acceptance by the customer.
5. Should the customer fail to perform his duty to participate, we shall – after the unsuccessful expiring of an appropriate grace period – be entitled to carry out the customer´s obligations ourselves or have them carried out by third parties at the customer´s expense.

Transport and Insurance

1. Unless otherwise agreed upon in writing, the customer shall, at his own expense and risk, deliver the product to be repaired / maintained to our address and collect it there upon completion of the repair/maintenance work.
2. At the request of the customer, insurance coverage shall be taken out at customer´s expense for shipment to and return from FMB-Blickle factory.
3. There shall be no insurance coverage in force during the period of repair / maintenance. Only at the customer´s express request in writing and at his expense we shall arrange insurance coverage against usual risks.
4. If the customer delays the collection we may invoice the customer storage charges for the storage at our factory. At our discretion, the product of repair / maintenance can also be stored elsewhere. The customer shall bear the cost of storage.

Time Limit for Repair / Maintenance Work

1. Any specifications regarding the time limits for the repair / maintenance or service work (hereinafter referred to as “Service Terms”) are based on estimates and shall therefore not be considered binding.
2. The customer shall not be entitled to demand the agreement of a binding service term, which shall be indicated as being binding, until all preliminary work, error location times, diagnostics and the like have been completed and the scope of the work shall have been able to be precisely ascertained.
3. The said binding service term shall be deemed to have been satisfied if by expiry thereof the product to be repaired / maintained is ready for collection by the customer, where testing is contractually agreed, for performance thereof.
4. Should subsequently additional orders be placed, the order be extended or additional repair / maintenance work become necessary, the agreed time limit for the repair / maintenance work shall be prolonged accordingly.
5. Should the repair / maintenance work be delayed by industrial disputes or by circumstances we are not responsible for, the time limit for the repair / maintenance work shall be reasonably extended, provided that such impediments prove to be of considerable influence on the completion of the repair/maintenance work.
6. In case of a default caused by our side, resulting in damage for the customer, the customer shall be entitled to demand a flat-rate default compensation. This compensation shall be 0.5% for every full week of the delay, however, this shall, at the most, be 5% in total of the total repair / maintenance price. If in consideration of the statutory exceptions, the customer sets FMB-Blickle an appropriate period of grace after the due date and the corresponding deadline cannot be met, then the customer is justified in withdrawing from the contract in the scope of the statutory regulations. Any other claims resulting from default in performance are defined solely according to section X.1 of these service conditions.

Acceptance and Latest Deadline

1. The customer shall be required to conduct acceptance of the repair/maintenance work as soon as he has been notified of completion and any contractually agreed trials of the product to be repaired / maintained have been performed. Should the repair / maintenance work prove not to be in conformity with the contract, we shall remedy the defect. However, this shall not apply if said defect is attributable to circumstances for which the customer is responsible. The customer shall not be entitled to refuse acceptance should an immaterial defect exist.
2. Should acceptance be delayed through no fault of FMB-Blickle, said acceptance shall be deemed to have been effected two weeks subsequent to notification of completion of the repair / maintenance work.
3. Acceptance shall release FMB-Blickle from liability for recognizable defects unless the customer has reserved the right to subsequently assert a complaint for a specific defect.

Reservation of Ownership

1. FMB-Blickle shall reserve ownership to any and all accessories, parts or exchange equipment until any and all payments arising from the repair / maintenance contract have been received.
2. If the product of repair / maintenance is mixed with our parts or exchange equipment, such that the product of repair / maintenance is to be considered the main object, then the customer transfers to us co-ownership insofar as the main product belongs to him. The customer safeguards the co-ownership for us until any and all payments for the repair / maintenance work have been received.

Defects and Liability for Defects

1. After acceptance of the repair/maintenance work we shall be liable for defects in the repair / maintenance work, to the exclusion of any and all other claims by the customer, notwithstanding sections IX.3 and X of these service conditions, in such a manner that we shall remedy said defects. The customer shall inform us immediately in writing of any defects ascertained.
2. We shall not be liable if said defect is attributable to a circumstance for which the customer is responsible. This shall apply, in particular, with respect to parts supplied by the customer. We shall not be liable for the consequences resulting from modifications performed improperly by the customer or third parties without our prior written consent.
3. With due consideration being given to statutory exceptions, the customer shall have the right to a reduction of the repair / maintenance price should we allow an appropriate term to rectify said defect to elapse. The customer shall also be entitled to the right of reduction of the contractual price in other cases of failure to rectify defects. Only if said repair / maintenance shall be evidenced to not be of interest to the customer – in spite of said reduction – the customer shall be entitled to withdraw from the contract.
4. Further claims shall be determined solely according to section X.2 of these service conditions.

Supplier´s Liability; Exclusion of Liability

1. Should through the fault of FMB-Blickle components of the item to be repaired / maintained not be able to be employed in the contractual manner as a result of non-execution or faulty execution of suggestions and advice, as well as other contractual subsidiary obligations – in particular operating or maintenance instructions – provided prior or subsequent to entering into the contract, the provisions set forth in section X.2 shall apply accordingly, to the exclusion of any and all other claims of the customer.
2. In the case of damages that are not incurred on the item to be repaired / maintained itself, we shall be liable – for whatever legal reasons – only

   • in the event of willful intent,
   • in the event of gross negligence of its owner or executives,
   • in the event of culpable injury to life, limb or health,
   • in the event of defects or deficiencies that we have maliciously concealed,
   • within the framework of an assured warranty,
   • to the extent liability exists under the German Product Liability Act for personal injury or property damage to privately utilized items.

   In the event of a culpable infringement of major contractual obligations, we shall be also liable in the case of gross negligence on the part of non-executive employees and in the case of minor negligence, however in the latter case limited to typical damage under the contract that could reasonably be foreseen. No further entitlements shall exist.

Statutory Limitation

1. Any claims of the customer – on any legal ground whatsoever – shall be subject to a limitation period of 12 months. Claims for indemnification pursuant to section X.2 of these service conditions shall be subject to the statutory terms. Said statutory terms shall also apply in the event that we perform repair / maintenance work to a structure and is the cause of its defectiveness; the same applies to cases of entrepreneurial recourse according to sections 478 and 479 of the German Civil Act.

Applicable Law and Jurisdiction

1. All legal relationships between us and the customer shall be bound by and construed in accordance with the substantive law of the Federal Republic of Germany excluding the United Nations Convention on the International Sale of Goods (CISG).
2. If the customer is a registered merchant, a public law legal entity or public law special fund, the exclusive place of jurisdiction for all disputes arising from the contractual relationship is our place of business; the legal dispute, however, may also be pursued at our discretion at the place of performance or at the customer´s location.

Scope and Field of Application

1. These general terms and conditions for software projects (hereinafter referred to as “Software Conditions”) shall apply to all services which KBW Blickle Hydraulik GmbH, Peter-Heinlein-Straße 19, 78056 Villingen-Schwenningen, Germany (hereinafter referred to as “Contractor”) provides on behalf of a customer (hereinafter referred to as “Customer”) in connection with the development of individual software solutions.
2. The contractor shall only recognize the customer´s general terms and conditions that conflict with or deviate from these software conditions to the extent that he has expressly agreed to them in writing. In cases where the contractor is performing the service without reservations although being aware that the terms and conditions of the customer are contradicting or deviating from these software conditions, this does not signify consent – also in this case the present software conditions shall apply.
3. Individual agreements reached with the customer in individual cases (including side agreements, additions and amendments) shall in all cases have precedence over these software conditions. A written contract or the written confirmation of the contractor shall be decisive for the contents of such agreements.
4. The specific contract and these software conditions apply only for companies, public law bodies and public special funds as defined by section 310 (1) of the German Civil Code (BGB).
5. Provided nothing contrary has been stipulated in any individual case, the software project normally consists of two project stages: During the planning stage the contractor prepares a description of function. After completion and acceptance of this description of function the contractor develops the contractual software.

Definitions

1. The term “Contractual Software” refers to the documentation of the software to be developed by the contractor in accordance with the description of function thereof (including user documentation, interface description and installation guide, if necessary); it does not include, however, the source code and the maintenance documentation.
2. “Confidential Information” shall mean all information and documents of the other party which are marked confidential or which are to be considered confidential from the circumstances given; in particular, this refers to information about operational procedures, business relations and expert knowledge.

Object of the Contract

1. The contractor prepares the description of function for the customer and develops and implements the contractual software according to the specifications given in the description of function.
2. If agreed, the contractor shall take over installation, implementation and parametrization of the software on his own responsibility.

Service Performance

1. The contractor shall create the contractual software carefully in compliance with the generally acknowledged state of technology.
2. The contractor shall prepare the documentation in German.
3. The contractual software shall be delivered on a conventional data carrier or via e-mail.

Customer´s Duty to Cooperat

1. The customer shall be obliged to enhance the success of the project in each single phase by undertaking active and appropriate acts of cooperation. In particular, he shall provide the contractor with the information and data necessary for the proper implementation of the project and shall grant the employees of the contractor access to his business premises during office hours.
2. Should the customer fail to perform his duty to cooperate and as a result the contractor cannot complete the project or parts thereof within the agreed time, the period set in the timetable shall be prolonged accordingly.

Right to Information and Reporting

Change in Performance

Development of the Description of Function

Acceptance of the Description of Function

1. The customer shall check and give written approval to the description of function developed by the contractor. In order to examine the completeness and technical feasibility of the description of function the customer may involve an independent expert of his choice. The associated costs are borne by the customer.
2. The customer shall not have the right to refuse acceptance due to insignificant defects.
3. Should the customer refuse acceptance of the description of function due to significant defects, he shall inform the contractor in writing giving a description of the defect. The customer shall allow the contractor to remedy these defects within an appropriate period of time. Should acceptance fail for a second time, the customer shall be entitled to claim his legal rights, notably to rescind the contract.

Development of the Contractual Software

Acceptance of the Contractual Software

1. Subject of the acceptance shall be the contractual performance of the licensed software in accordance with the description of function prepared by the contractor. Acceptance can only take place if the contractor has given notice to the customer of readiness for acceptance.
2. After that, the customer shall have 10 days to check the readiness for acceptance and to declare the acceptance in writing within ten days of the beginning of the inspection.
3. Should the acceptance fail the customer shall submit a list to the contractor containing all defects hindering the acceptance. After the expiration of an appropriate period of time the contractor must provide a version of the contractual software or other work results without any defects and ready for acceptance. During the subsequent inspection only the recorded defects shall be checked, insofar as their functions can be tested separately.
4. The customer shall not have the right to refuse acceptance due to insignificant defects. These defects must be listed separately in the acceptance protocol.
5. Should the acceptance fail at least twice, the customer shall be entitled to claim his legal rights, notably to rescind the contract.

Payment

1. Unless otherwise stipulated in the individual contract, the following shall apply: For the preparation of the description of function the customer shall pay the agreed amount plus value added tax. The payment is due after the declaration of the acceptance within 30 days upon receipt of an invoice, however, no later than four weeks upon declaration of readiness for acceptance by the contractor, if the acceptance has not taken place for reasons the contractor is not responsible for.
2. Unless otherwise stipulated in the individual contract, the following shall apply: For the development of the contractual software the customer shall pay the agreed amount plus value added tax. The payment is due after the declaration of the acceptance within 30 days upon receipt of an invoice, however, no later than four weeks upon declaration of readiness for acceptance by the contractor, if the acceptance has not taken place for reasons the contractor is not responsible for.
3. The contractor shall be entitled to demand from the customer an adequate advance or interim payment according to §12 section (1) or (2).

Granting of Rights

1. Upon full payment the customer receives the single and temporally unlimited right to use the licensed software to the extent and within the scope of application which is granted with this contract. The permissible use includes the installation of the licensed software, the loading into the working memory as well as the intended use by the customer.
2. The customer shall be entitled to create a backup copy if this is necessary to safeguard the future use. The customer shall label each backup copy he makes “Backup Copy” and affix the manufacturer´s copyright notice so that it is clearly visible.
3. The customer shall only be entitled to decompile and reproduce the contractual software, insofar as this is legally stipulated. This applies, however, only insofar as the contractor upon request has not provided the customer with the necessary information for this within an appropriate period of time.
4. The customer shall be entitled to make the contractual software permanently available to a third party. In this case he must entirely discontinue using the program, erase all the installed copies of the programs from his computers and delete all copies of the software stored on separate data storage media or hand them over to the contractor unless he is obliged to keep them for a longer time due to statutory provisions. Upon request of the contractor the customer shall confirm in writing the fully implementation of the above mentioned measures or, if necessary, state the reasons for a longer storage period. Furthermore, the customer shall explicitly agree with the third party that the scope of the rights granted must be observed in accordance with this § 13.
5. Should the customer use the licensed software to an extent exceeding the acquired licenses in terms of quality (regarding the nature of the permitted use) or in terms of quantity, he shall promptly purchase the licenses required for the permitted use. If he fails to do so, the contractor shall assert his rights.
6. Copyright notices, serial numbers as well as other features that serve as product identification must under no circumstances be removed or changed.

Liability for Defects

1. The contractor guarantees that the contractual software is free of quality defects.
2. The contractor guarantees that the work results do not violate any rights of third parties within the Federal Republic of Germany. The contractor shall be proactive in supporting the customer during the legal and out-of-court settlement of such disputes with third parties. The customer shall have the sole right to conduct cases as well as to conclude court settlements or to reach out-of-court settlements.

Liability

1. In the case of damages that are not incurred on the contractual software itself, the contractor shall be liable – for whatever legal reasons – only

   • in the event of willful intent,
   • in the event of gross negligence on the part of the owner / company organs or company executives,
   • in the event of culpable injury to life, limb or health,
   • in the event of defects or deficiencies that he has maliciously concealed,
   • within the framework of an assured warranty,
   • in the event of defects in the contractual software to the extent liability exists under the German Product Liability Act for personal injury or property damage to privately utilized items.
   • in the event of a culpable infringement of major contractual obligations, the contractor shall also be liable in the case of gross negligence on the part of non-executive employees and in the case of minor negligence, however in the latter case limited to typical damage under the contract that could reasonably be foreseen.

   No further entitlements towards the contractor shall exist.
2. In case of a default caused by the contractor, resulting in damage for the customer, the customer shall be entitled to demand a flat-rate default compensation. This compensation shall be 0.5% for every full week of the delay, however, this shall, at the most be 5% in total of the value of that part of the total compensation that cannot be used on time or in accordance with the terms of the contract as a result of the delay. If in consideration of the statutory exceptions, the customer sets the contractor an appropriate period of grace after the due date and the corresponding deadline cannot be met, then the customer is justified in withdrawing from the contract in the scope of the statutory regulations. Any other claims resulting from default are defined solely according to section § 15.1 of these software conditions.

Escalation Procedure

1. In the event of disagreement the parties with the help of their project leaders shall endeavor to find a solution by common consent before taking legal measures.
2. If in accordance with section 16.1 no solution can be found, the issue shall be escalated to the management level. If a solution by common consent can also not be found at the management level, the parties shall carry out a conciliation procedure according to section 16.3.
3. In case of any differences of opinion arising under or in connection with the present terms and conditions or any supplements or additions thereto which they are unable to resolve themselves, the contracting parties agree to call on the conciliation office of the German Association of Law and Informatics (DGRI) in order to resolve the dispute fully or partially, provisionally or finally according to the DGRI conciliation rules in the version in force at the time the conciliation proceeding is initiated.

Data Protection

Confidentiality

1. The parties agree to maintain silence about any confidential information. This obligation shall remain valid for a period of eight years after termination of the contract.
2. Exempted from this obligation is such confidential information

   • which can be proven to have been known to the recipient when entering into the contract or comes to his knowledge from some third party after that without any confidentiality agreement, statutory requirements or official decree being contravened;
   • which is or becomes publicly known when entering into the contract without any violation of this contract;
   • which must be disclosed because of statutory obligations or on the decree of a court or of an official authority. To the extent that it is permissible and possible the recipient shall advise the other contractual party in advance of any disclosure obligation and give it an opportunity to take action against the disclosure.
3. The contractual parties shall grant access to such confidential information only to consultants who are bound by the obligation of professional secrecy or who were required to fulfill obligations complying with the confidentiality agreements of this agreement. Furthermore, the contractual parties shall make the information to be handled confidentially accessible only to those employees that need such access for the purpose of the performance of this contract and shall oblige these employees to maintain secrecy to the legally permissible extent even after they have left.

Final Provisions

1. The customer has the right to counter demands only in the case of indisputable or legally determined demands or of such demands which are ready for a decision in any proceedings pending at law.
2. The law of the Federal Republic of Germany shall apply to these software conditions, to the exclusion of the United Nations Conventions on the International Sale of Goods (CISG).
3. The place of fulfilment shall be Villingen-Schwenningen.
4. Exclusive place of jurisdiction shall be Villingen-Schwenningen, provided each contractual party is a registered merchant, a public law legal entity or public law special fund or if one of the parties has no general place of jurisdiction in Germany.