Terms and Conditions: Repairs
General Terms and Conditions for Repair Services, cma audio GmbH
The contractual relations between the client and the contractor are governed exclusively by the following Terms and Conditions for Repairs in the version valid at the time the service is commissioned. Terms and conditions pertaining to the contractor that deviate from these Terms and Conditions do not automatically become part of the contract of sale in the case that the contractor does not explicitly object to them. They apply only if the contractor agrees to them specifically and in writing.
2. Description of Services
The description of service definitively states the characteristics of the the service to be rendered. The contractor’s representatives are not authorised to make verbal agreements or assurances that go beyond the content of this written contract. Verbal agreements made before or during the conclusion of the contract are valid only if they are recorded in writing.
3. Cost Estimates
At the client’s request, the contractor will provide an estimate for the repair costs, incurring a charge of €39.20 plus VAT. The estimate does not include any fixed costs. Should the repair costs exceed the estimate by over 15 %, the contractor will inform the client without delay. In this event, the client may, in writing, cancel the commission to carry out the repairs. The contractor is then entitled levy charges proportional to the work already carried out.
4. Payment, invoice queries, delays and storage costs
The fee is payable in full on acceptance that the service has been completed. Objections to the content of the invoice must be raised in writing. The client is deemed to be in arrears without any further declaration on the part of the contractor if the due amount is not settled ten days after payment has become due. If a client is in arrears, the contractor reserves the right to charge interest relating to the delay in payment. The interest rate charged will be 9.5 and 6.5 percentage points p.a. for businesses and consumers respectively above the base rate of interest set by the Federal Bank of Germany (“Deutsche Bundesbank”) . The contractor reserves the right to prove higher levels of damages caused by the delay in payment and to pursue this claim. The client is granted leave to attempt to prove that the contractor has not suffered damages exceeding 5 percentage points (consumers) and 8 percentage points (businesses) above the base rate of interest set by the Federal Bank of Germany p.a.
If the product is not shipped at the client’s request for at least two weeks after the agreed due date of delivery or, in cases where no specific date of delivery was agreed upon, delivery is delayed at the client’s request by two weeks or more from the date on which the contractor declared that the product was available and ready to be shipped, the contractor is permitted to charge a monthly flat-rate storage fee (or proportionally, as appropriate) amounting to 0.5% of the the total price. The maximum fee may not exceed 5% of the total price. The client is permitted to prove that the contractor has not suffered damages or that the damages are substantially lower than the amount charged. The contractor is permitted to prove that the damages suffered are higher than the amount charged.
Where a client is in arrears, the contractor is permitted to delay delivery of new orders/performance of services pending payment of the owed amount.
5. Offsetting, Retention and Right to Rectification
The client only has the right to offset an amount due to the contractor if the client’s counterclaim has been confirmed by a final, enforceable legal judgement, is ready for judgement, is undisputed or is recognised as valid by the contractor. The client is only entitled to retention of payment if the contractor’s counterclaim pertains to the same contract of sale and has been confirmed by a final, enforceable judgement, is ready for judgement, is undisputed or is recognised as valid by the contractor.
Should defects exist, the client is not entitled to retain payment if this is not in a reasonable relation to the defect and the estimated costs of its rectification (especially in cases where defects are removed). The client does not have the right to assert a claim or exercise rights relating to defects in the service if the client has not settled in full all payments previously due and the amount in question is in a reasonable relation to the value of the defective service provided.
6. Costs incurred in establishing the cause of faults
Should it be impossible to carry out the repairs, the client is nevertheless liable to pay the costs incurred in searching for the fault, excepting where the impossibility of carrying out the repairs falls within the responsibility and risk of the contractor.
7. Exclusion of repeated performance of service
In cases where a defect in the repair service is to be rectified, the contractor is not compelled to perform the service for a second time. If the rectification of the defect is unsuccessful, the client is entitled to reduce the payment or to withdraw from the contract. This does not affect the right of the client to demand damages within the scope of statutory regulations and these Terms and Conditions for Repair Services from the seller instead of performance of the service.
8. Rectification: Two Attempts
If the customer intends to claim damages instead of insisting that the service be performed, or if the customer intends to carry out the repair, the rectification will only have been deemed to have failed after a second unsuccessful attempt has been made. Statutory cases concerning the dispensability of setting a deadline remain unaffected.
9. Disclaimer and limitation of liability
The contractor is liable in cases where the contractor or other party or parties acting on the seller’s behalf act with intent or gross negligence. The appropriate statutory provisions apply. The contractor’s liability is limited as set out in the Product Liability Act (“Produkthaftungsgesetz”) to damage to life, body or health; culpability in contravening substantive terms of the contract; or if the contractor has deliberately concealed defects with an intent to deceive or if the contractor has undertaken a guarantee for the qualities of the delivered goods. The damages for which the seller is liable in cases where the seller has contravened substantive aspects of the contract are limited to damages that are foreseeable and typical for the contract. The contractor accepts no liability whatever for damages caused by the delivered goods to property owned by the client, e.g. damage to other items or objects. The provisions stated in Clause 3 and 4 of this Section are invalid in cases of intent or gross negligence or if liability exists in cases of damage to life, body or health, or if the contractor has deliberately concealed defects with an intent to deceive or has undertaken a guarantee for the qualities of the delivered goods. If the client is a business, liability is limited to damages that are foreseeable and to an extent typical for the contract even in cases of gross negligence, provided that none of the exceptions stated in Clause 2 of this contract apply.
10. Limitations of liability in cases of delayed delivery
The contractor is liable in cases of delayed delivery where the contractor, or a representative or agent of the contractor, has acted with intent or gross negligence as defined by statutory regulations. In other cases of delayed delivery, the liability of the contractor for damages in addition to fulfilling the performance is limited to 5% of the value of the goods. The liability of the contractor for damages caused by failure to deliver the goods is limited to 15% of the value of the goods. In cases where the contractor has contravened substantive contractual commitments, the liability is limited to damages that are foreseeable and typical for the contract. No other claims made by the client, including any made after a deadline has been set by the client for the contractor to fulfil the contract, will be deemed valid. If the client is a business, the seller’s liability is restricted to typical and foreseeable damages, even if the seller has acted with gross negligence. The limitations to liability stated above do not apply in cases of damage to life, body or health.
11. Limitation of liability in cases of impossibility of performance
The liability of the contractor in cases of impossibility of performance where the contractor or the contractor’s representatives or agents have acted with intent or gross negligence is limited to the extent defined by statutory regulations. If the client is a business, the contractor’s liability is limited in cases of gross negligence to the extent of damages that are foreseeable and typical for the contract, providing that none of the exceptions stated in Clause 5 of these regulations apply. In addition, the liability of the contractor for damages in cases of impossibility of performance and to recompense futile expenditure is limited in total to 20 % of the value of the goods. No additional claims on the part of the client will be valid in cases of impossibility of performance. This limitation is not valid in cases of liability involving intent or gross negligence, or cases involving damage to the life, body or health. The right of the client to withdraw from the contract of sale is not affected.
12. Limitation of the right to withdrawal (“Rücktrittsrecht”) and decision duty (“Entscheidungspflicht”)
The client may withdraw from the contract within the limits of statutory regulations only if the contractor has violated contractual obligations. In the case of defects, the client’s rights to withdraw are limited to the applicable statutory rights. After being informed by the contractor that the contractor is in dereliction of duty, the client must decide within a reasonable time frame if the buyer wishes to withdraw from the contract or insist on the delivery/performance of the ordered goods/services.
13. Statute of limitations
The limitation period for claims and rights based on defects is one year, regardless of its statutory basis. This also applies to any other claims for damages against the contractor, regardless of the statutory basis for those claims, and regardless of whether they are made because of defects or flaws.
The limitation period stated above apply to the following extent:
The limitation period does not apply in cases of intent.
Also, the limitation period does not apply if the seller has withheld knowledge of a defect with the intent to deceive. Should the seller have withheld knowledge of a defect with the intent to deceive, the limitation periods stated in Paragraph 1 does not apply and the statutory limitation period that would apply if no intent to deceive were present applies instead (Section 634a, Paragraph 1, Clause 1 or Clause 3, German Civil Code), excepting the extension of deadlines in cases of intent to deceive as stated in Section 634a, Paragraph 3, German Civil Code.
Additionally, the limitation periods do not apply to claims for damages involving damage to life, body, health or freedom; claims made on the basis of the Product Liability Act (“Produkthaftungsgesetz”); gross negligence in discharging a duty; or the violation of substantive elements of the contract.
The limitation period begins from the time the goods are delivered, regardless of the nature of the claims for damages.
Insofar as this clause concerns claims for damages, this includes claims for recompense for futile expenditures.
Providing that no other explicit agreement has been made, the statutory regulations are valid regardless of the time when the limitation period begins, the suspension of expiry, the suspension of the statute of limitations or the renewal of deadlines.
14. Data Protection
The client acknowledges that the contractor will save and automatically process the client’s data for the purposes of fulfilling the contractual relationship between the client and the contractor. No data will transmitted to third parties.
15. Delivery by third parties
The contractor has the right to perform the service for the client’s legal successors, legal successors created by any fusion of the client with another entity and/or any other authorised third party. Should the contractor make use of this right, the client is entitled to immediately withdraw from the contract providing that the contractor’s exercising of the right causes an inappropriate disadvantage to the client.
16. Place of fulfilment, court of jurisdiction, partial nullity
The place of fulfilment is Gauting.
If the client is a businessperson, any conflicts directly or indirectly arising from the contractual relationship will be adjudicated by the Regional Court Munich I (“Landgericht München I”). For business concluded with parties residing abroad, the contractor reserves the right to bring legal proceedings before the court with jurisdiction for the client.
The law of the Federal Republic of Germany shall apply with the exception of countries which prohibit the application of German law. In such cases, the applicable law of the country in question shall apply. Neither United Nations sales law nor the United Nations Convention on Contracts for the International Sale of Goods shall apply.
Should one of the provisions of these Terms and Conditions or a part thereof, or a provision of any other agreement made, be fully or partly invalid, then only that part will be deemed invalid. The invalidity of individual provisions does not affect the validity of the remaining provisions.
Version: June 2014