General Terms and Conditions for Maintenance ... - Carl Zeiss, Inc.

General Terms and Conditions for Maintenance Contracts6. Payment6.1 As payment for the services, we are entitled to chargeyou, depending on the type of agreement, a flatmaintenance fee for each date or specific period ofmaintenance work or a fee in accordance with theapplicable rates.6.2 The flat maintenance fee shall include all labour costs forthe performance of the agreed service, including travelcosts and expenses. If, however, at your premises, themaintenance personnel are held up in the performance ofthis work, the waiting times may also be charged at theapplicable hourly rate for maintenance personnel. Youshall also bear any additional costs incurred if, forreasons attributable to you, the maintenance work cannotbe performed or cannot be performed in full within theagreed time.6.3 The flat maintenance fee does not include the costs forsubstances used to maintain the instruments, aids,wearing parts, spare parts, exchange parts and all thoseservices performed by us in addition to the servicesagreed. Such costs and services will be charged at ourapplicable rates.6.4 The level of the flat maintenance fee shall be derived fromthe relevant maintenance agreement. Statutory valueaddedtax and other applicable statutory duties will becharged in addition. If we perform services abroad, youshall refund all incurring foreign taxes and dutiesconnected to the service.6.5 Payments shall be due without deduction immediatelyafter the completion of our services and upon receipt ofthe invoice. Immediately upon default of payment –or fromthe due date if the client is a businessman within themeaning of the German Commercial Code– we areentitled to demand default interest of 8 (for consumers 5)percentage points above the base lending rate p.a.. Wereserve the right to claim a higher actual damage.6.6 The agreed flat maintenance fee is based on costs at thetime the maintenance contract is concluded. We shall beentitled to adjust the flat fee in accordance with costdevelopments provided we disclose individual costelements and their share of the costs. You will be notifiedin writing of any adjustment at least 6 weeks before thestart of the accounting period to which the priceadjustment applies. You shall be entitled, within 4 weeksof receiving such notification, to terminate themaintenance contract as of the moment the priceadjustment becomes effective.6.7 You may only offset claims that are uncontested or legallybinding. You may only enforce a right of retention if this isbased on the same contractual relationship and if you arenot a businessman.7. Cooperation duties7.1 You shall make the instruments available to ourmaintenance personnel and subcontracted third parties atthe agreed time in order to allow us to perform themaintenance work, and you shall grant access to thepremises.7.2 You shall make the following services (sections 7.2.1 and7.2.2) available free of charge for the duration of themaintenance work:7.2.1 Tools –with the exception of special tools and measuringinstruments– that need to be present at the installationconcerned in accordance with the relevant accidentpreventionregulations.7.2.2 Appropriate support staff to operate the instruments andsupport the maintenance personnel, along with, ifapplicable, any aids required.7.3 Any special safety and plant regulations in force at yourpremises that must be observed by us during theperformance of the maintenance work shall be pointedout, and if necessary, explained in detail to themaintenance personnel before the maintenance workbegins. If such measures require a significant amount oftime, we reserve the right to make an additional chargeon basis of that period of time..CARL ZEISS MEDITEC AG7.4 The information required about the instrument to bemaintained shall be passed on and the associateddocuments made available to our maintenance personneland subcontracted third parties.7.5 You shall inform the maintenance personnel of anypeculiarities and problems that have appeared in relationto the instrument to be maintained without being asked forsuch information.8. Warranty8.1 We shall be obliged to complete or rectify free of chargeany work that has been performed defectively.8.2 We undertake to eliminate free of charge any defects inthe parts used within the context of the maintenance workby rectifying or exchanging these parts.8.3 If we fail to comply with the above obligations relating tocompletion, rectification or exchange, or fail to do so intime, you shall be entitled to set a reasonable graceperiod. If we culpably allow a reasonable grace period setto expire, you may demand a reduction in themaintenance payment or terminate the contract withoutnotice. The same also applies if the work performedunder the warranty is defective.8.4 You are not entitled to make any other or further warrantyclaims. In particular, we provide no guarantee that theinstruments subject to the maintenance work will operatefree of interruption and faults.8.5 If you assert warranty claims, you shall immediately notifyus of any defects or damage after discovering them anddo everything possible to limit the damage caused by adefect.8.6 Unless otherwise agreed, the period of warranty shall be12 months. The restart of the period of warranty shall beexcluded except in cases of intent or gross negligence.8.7 If the examination of a warranty claim demonstrates thatthere is no case for a claim, we shall be entitled to chargefor the examination and performance of the service at theapplicable rates.9. Limitation of liability9.1 If you are unable to use the instrument we performedservices on in conformity with the contract because of ourfault as a result of the omission or improperimplementation of suggestions and advice given before orafter the conclusion of the contract or through theinfringement of other additional contractual obligations–particularly instructions for the operation andmaintenance of the delivered instrument– sections 8, 9.2,9.3 and 9.4 shall apply accordingly.9.2 We shall only be liable –on any legal groundswhatsoever– for damage which is not caused to theinstrument we performed services on itself in the followingcases:- intention,- gross negligence,- culpable injury of life, body and health,- defects we have concealed fraudulently or of which wehave guaranteed the absence.9.3 In the event of the culpable violation of substantialcontractual obligations (obligations the breach of whichputs the fulfilment of the purpose of the contract at risk),we shall also be liable for ordinary negligence; however,this liability shall in terms of the amount be limited todamage that could reasonably have been foreseen andthat is typical for a contract of this nature.9.4 Any claims going beyond the scope of sections 9.1 to 9.3shall be excluded.Version 11.0 Page 2 of 3

General Terms and Conditions for Maintenance Contracts10. Duration of the contract10.1 The maintenance contract is concluded for an indefiniteperiod.10.2 The maintenance contract ends when the instrument issold or ultimately taken out of service. The contract shallend no sooner as we have received written notificationabout this.10.3 The maintenance contract may be terminated forindividual instruments or in its entirety by either party atthe end of the calendar year, giving 3 months’ notice. Itshall not be terminated before the end of the yearfollowing the year in which the contract has beenconcluded.10.4 We shall be entitled to terminate the maintenancecontract without notice at any time if you are in default ofpayment for more than 30 days or if the instrument hasbeen repaired or maintained by third parties without ourconsent or if the maintenance work has been made moredifficult by changes to the configuration that have notbeen approved by us or if the instrument-specificenvironmental conditions no longer comply with theinstallation guidelines.10.5 The contract may only be terminated in writing.11. Final provisions11.1 We point out that personal data in relation to ourcontractual relationship may be stored by us and may betransferred to companies associated with us in the CarlZeiss group, too.11.2 Subsidiary agreements, amendments and additions tomaintenance contracts must be in writing in order to beeffective. Oral agreements on the suspension of therequirement of written form are void.11.3 You shall not be entitled to transfer your rights andobligations under the contract to third parties. If yousurrender the instrument that is subject to themaintenance work to a third party, your paymentobligation continue to apply, unless the third party takesover this contract with our consent.11.4 The place of jurisdiction, provided that you are abusinessman, a legal person under public law or a specialfund under public law, shall be Jena/Germany. However,we may also take legal action against you at your place ofbusiness.11.5 Governing law shall be the law of Germany with theexclusion of the international conflict of laws provisionsthereof and with the exclusion of the United NationsConvention on Contracts for the International Sale ofGoods (CISG).11.6 Should any of the clauses of these General Terms andConditions be wholly or partially invalid, the validity of theremaining clauses or parts thereof shall not be affected.CARL ZEISS MEDITEC AGVersion 11.0 Page 3 of 3