Terms and Conditions

Terms and Conditions for Domestic Installations

For use with:

  1. a person who, at the time the contract is concluded, is acting in the course of their commercial or self-employed professional activities (business owner);
  2. legal entities governed by public law or a special fund governed by public law.

I. Scope

These terms and conditions apply to installation work performed by a mechanical engineering company (installation contractor), unless otherwise agreed upon in individual cases. These terms and conditions also apply to international transactions. Any deviating contractual terms and conditions of the customer shall not become part of the contract, even upon acceptance of the order.

II. Installation Cost

  1. Installation will be billed according to the estimated time provided in the quote, unless a flat rate has been expressly agreed upon.
  2. The agreed-upon amounts do not include value-added tax, which must be paid to the installation contractor at the statutory rate in addition to the agreed-upon amounts.

III. Cooperation by the Customer

  1. The customer must assist the installation crew in carrying out the installation at the customer’s expense.
  2. He must take the special measures necessary to protect people and property at the installation site. He must also inform the installation supervisor of any existing special safety regulations, to the extent that they are relevant to the installation crew. He shall notify the installation contractor of any violations of such safety regulations by the installation crew. In the event of serious violations, he may, in consultation with the installation supervisor, deny the offending party access to the installation site.

IV. Technical Assistance Provided by the Customer

  1. The customer is obligated, at its own expense, to provide technical assistance, in particular to:
    a. Provision of the necessary and appropriate laborers (masons, carpenters, metalworkers, and other skilled workers, as well as general laborers) in the number required for the installation and for the required duration; the laborers must follow the instructions of the installation supervisor. The installation contractor assumes no liability for the support staff. If a defect or damage is caused by the support staff as a result of instructions from the installation supervisor, Sections VII and VIII shall apply.
    b. Performance of all earthwork, construction, subgrade, and scaffolding work, including the procurement of the necessary building materials.
    c. Provision of the necessary equipment and heavy tools (e.g., hoists, compressors) as well as the necessary supplies and materials (e.g., scaffolding timbers, wedges, shims, cement, plaster and sealing materials, lubricants, fuels, drive cables, and drive belts).
    d. Provision of heating, lighting, power, and water, including the necessary connections.
    e. Provision of suitable, dry, and lockable rooms for storing the installation crew’s tools.
    f. Transporting the assembly parts to the assembly area, protecting the assembly site and materials from harmful influences of any kind, and cleaning the assembly site.
    g. Provision of suitable, theft-proof rest areas and work areas (with heating, lighting, washing facilities, and restrooms) and first aid for the installation crew.
    h. Providing the materials and performing all other actions necessary to adjust the item to be installed and to conduct the testing specified in the contract.
  2. The technical assistance provided by the purchaser must ensure that installation can begin immediately upon the arrival of the installation crew and be carried out without delay until acceptance by the purchaser. If specific plans or instructions from the installation contractor are required, the contractor shall provide them to the purchaser in a timely manner.
  3. If the customer fails to fulfill its obligations, the installation contractor is entitled—but not obligated—after setting a deadline, to perform the actions for which the customer is responsible in the customer’s stead and at the customer’s expense. In all other respects, the installation contractor’s statutory rights and claims remain unaffected.

V. Installation Deadline, Installation Delay

  1. The installation deadline is deemed to have been met if, by the time it expires, the installation is ready for acceptance by the customer or, in the case of a contractually stipulated test, ready for such testing to be conducted.
  2. If installation is delayed due to measures taken in connection with labor disputes, in particular strikes, pandemics (especially COVID-19) and lockouts, as well as the occurrence of circumstances for which neither the
    nor the installation contractor is at fault, the installation period shall be extended by a reasonable amount, provided that such obstacles demonstrably have a significant impact on the completion of the installation.
  3. If the customer sets a reasonable deadline for performance for the installation contractor after the due date—taking into account the statutory exceptions—and the deadline is not met, the customer is entitled to rescind the contract within the framework of the statutory provisions. The customer agrees to declare, upon request by the installation contractor and within a reasonable period, whether it will exercise its right to rescind the contract.
  4. The installation contractor is exempt from the obligation to complete installation on time if the reason for the impediment to installation is not attributable to the installation contractor but is directly or indirectly attributable to the outbreak of the COVID-19 virus (coronavirus). In such cases, force majeure applies. This also applies
    if the installation contractor does not receive deliveries from its suppliers, or does not receive them on time, because the suppliers or the supply chain are affected by the outbreak.

    Any other claims arising from default shall be governed exclusively by Section VIII.3 of these Terms and Conditions.

VI. Acceptance

  1. The customer is obligated to accept the installation as soon as he has been notified of its completion and any contractually required testing of the installed item has taken place. If the installation proves not to be in accordance with the contract, the installer is obligated to remedy the defect. This does not apply if the defect is insignificant to the customer’s interests or is due to a circumstance attributable to the customer. If the defect is minor, the customer may not refuse acceptance.
  2. If acceptance is delayed through no fault of the installation contractor, acceptance shall be deemed to have taken place two weeks after notification that the installation has been completed.
  3. Upon acceptance, the installation contractor’s liability for apparent defects ceases, unless the customer has reserved the right to assert a claim for a specific defect.

VII. Claims for Defects

  1. Upon acceptance of the installation, the installation contractor shall be liable for defects in the installation, to the exclusion of all other claims by the customer, without prejudice to Sections 5 and 6 and Section VIII, in such a way that the contractor must remedy the defects. The customer must immediately notify the installation contractor in writing of any defect that has been identified.
  2. The installation contractor shall not be liable if the defect is insignificant to the customer’s interests or is attributable to a circumstance for which the customer is responsible.
  3. If the customer or a third party makes any improper modifications or performs repair work without the prior approval of the installation contractor, the installation contractor’s liability for the resulting consequences shall be waived. Only in urgent cases where operational safety is
    at risk and to prevent disproportionately great damage—in which case the installation contractor must be notified immediately—or if the installation contractor—taking into account the statutory exceptions — has allowed a reasonable deadline set for it to remedy the defect to elapse without result, the customer shall have the right, within the framework of statutory provisions, to remedy the defect itself or have it remedied by third parties and to demand reimbursement of the necessary costs from the installation contractor.
  4. In the event of a valid complaint, the installation contractor shall bear the costs necessary to remedy the defect, provided that this does not impose a disproportionate burden on the installation contractor.
  5. If the installation contractor—taking into account the exceptions provided by law—allows a reasonable deadline set for him to remedy the defects to elapse without taking action, the customer shall have the right to a price reduction in accordance with statutory provisions. Only if the customer can demonstrate that, despite the price reduction, the installation is of no interest to the customer may the customer withdraw from the contract.
  6. Any other claims shall be governed exclusively by Section VIII.3 of these Terms and Conditions.

VIII. Liability of the Installation Contractor; Disclaimer of Liability

  1. If, during installation, an installation part supplied by the installer is damaged due to the installer’s fault, the installer must, at its discretion and at its own expense, either repair it or supply a replacement.
  2. If the installed item cannot be used by the purchaser in accordance with the contract as a result of the installation contractor’s negligent omission or
    erroneous recommendations or advice provided before or after the conclusion of the contract, or due to the negligent breach of other ancillary contractual obligations —in particular, instructions for the operation and maintenance of the installed item—the customer is unable to use the installed item in accordance with the contract, then the provisions of Sections VII and VIII.1 and 3 shall apply, to the exclusion of any further claims by the customer.
  3. The installation contractor is liable for damages that did not occur to the installation object itself—regardless of the legal grounds—only
    a. in cases of willful misconduct and gross negligence,
    b. in cases of culpable injury to life, limb, or health,
    c. in the case of defects that the contractor fraudulently concealed,
    d. within the scope of a warranty commitment,
    e. to the extent that liability exists under the Product Liability Act for personal injury or property damage to items used for private purposes,
    .

    In the event of a culpable breach of material contractual obligations, the installation contractor shall also be liable in cases of simple negligence, though such liability is limited to damages that are typical for the contract and reasonably foreseeable.

    Further claims are excluded.

IX. Statute of Limitations

All claims by the customer—regardless of their legal basis—are subject to a 12-month statute of limitations. For claims for damages under Section VIII.3 a–c and e, the statutory limitation periods apply. If the installation contractor performs installation work on a structure and thereby causes it to be defective, the statutory limitation periods also apply.

    X. Compensation by the Purchaser

    If, through no fault of the installation contractor, the equipment or tools provided by the contractor are damaged at the installation site or are lost through no fault of the contractor, the customer is obligated to compensate for such damage. Damage attributable to normal wear and tear is excluded.

      XI. Governing Law, Jurisdiction

      1. All legal relationships between the installation contractor and the customer shall be governed exclusively by the laws of the Federal Republic of Germany.
      2. The place of jurisdiction is the court with jurisdiction over the installation contractor’s place of business. However, the installation contractor is entitled to file a lawsuit at the customer’s principal place of business.
      Download

      Terms and Conditions for Repairs to Machinery and Equipment

      For use with:

      1. a person who, at the time the contract is concluded, is acting in the course of their commercial or self-employed professional activities (business owner);
      2. legal entities governed by public law or a special fund governed by public law.

      I. Conclusion of the Contract, Disclosure Obligations, Safety Instructions

      1. All repairs are subject to these terms and conditions as well as any separate contractual agreements. These terms and conditions form an integral part of all contracts that the Contractor enters into with its contractual partners regarding the repairs it offers. They also apply to all future repairs and services provided to the customer, even if they are not separately agreed upon again. These terms and conditions also apply to international transactions. Any deviating contractual terms and conditions of the customer shall not become part of the contract, even upon acceptance of the order.

        If an uncontested written order confirmation exists, it shall be decisive for the content of the contract and the scope of the repair.
      2. If the item to be repaired was not supplied by the Contractor, the Customer must notify the Contractor of any existing industrial property rights pertaining to the item; provided that the Contractor is not at fault, the Customer shall indemnify the Contractor against any claims by third parties arising from industrial property rights.
      3. The customer must inform the contractor in writing and in a timely manner of any contamination, any residues in the items to be repaired that may pose a health hazard, as well as any transportation risks and other repair-related measures that need to be taken.

      II. Repairs That Cannot Be Performed

      1. The services rendered in connection with the preparation of a cost estimate, as well as any additional expenses incurred and documented (time spent troubleshooting is considered working time), will be billed to the customer if the repair cannot be performed for reasons beyond the contractor’s control, in particular because

        – the reported fault did not occur during the inspection,
        – replacement parts cannot be procured,
        – the customer culpably missed the agreed-upon appointment,
        – the contract was terminated during its performance.
      2. The item being repaired need only be restored to its original condition at the customer’s express request and upon reimbursement of the costs, unless the work performed was not necessary.
      3. If the repair is not feasible, the Contractor shall not be liable for damage to the item being repaired, for breach of ancillary contractual obligations, or for damage that did not occur to the item being repaired itself, regardless of the legal basis invoked by the Customer.

        The grounds for liability set forth in Section XI.3 of these Terms and Conditions apply accordingly.

      III. Cost Information, Cost Estimate

      1. To the extent possible, the estimated repair cost will be provided to the customer upon conclusion of the contract; otherwise, the customer may set cost limits. If the repair cannot be carried out within these cost limits, or if the contractor deems it necessary to perform additional work during the repair, the customer’s consent must be obtained if the specified costs are exceeded by more than 15%.
      2. If the customer wishes to receive a cost estimate with binding price quotes prior to the repair work being performed, the customer must expressly request this. Unless otherwise agreed, such a cost estimate is binding only if it is provided in writing. A fee is payable for the cost estimate. The customer will not be charged for the services rendered in preparing the cost estimate, provided that they can be utilized during the performance of the repair.

      IV. Price and Payment

      1. The contractor is entitled to request a reasonable advance payment upon conclusion of the contract.
      2. When calculating the repair costs, the prices for parts, materials, and special services used, as well as the prices for labor, travel, and transportation costs, must be itemized separately. If the repair is carried out on the basis of a binding cost estimate, a reference to the cost estimate is sufficient, provided that any deviations in the scope of services are specifically noted.
      3. Value-added tax will be charged at the applicable statutory rate and is payable by the customer.
      4. Any correction to the invoice by the contractor and any objection by the customer must be made in writing no later than four weeks after receipt of the invoice.
      5. Payment is due upon acceptance and delivery or upon receipt of the invoice, without any discount.
      6. Withholding payments on the basis of any counterclaims by the customer that are disputed by the contractor is not permitted.
      7. Set-off based on any counterclaims by the Customer arising from other legal relationships—which are disputed by the Contractor—is not permitted.

      V. Customer’s Cooperation and Technical Assistance in the Event of Repairs Performed Outside the Contractor’s Facility

      1. The customer must assist the repair personnel in carrying out the repair at the customer’s expense.
      2. The customer must take the special measures necessary to protect people and property at the repair site
        . The customer must also inform the repair supervisor of any existing special safety regulations
        , to the extent that they are relevant to the repair personnel. The customer shall notify the contractor
        of any violations of such safety regulations by the repair personnel. In the event of
        serious violations, he may, in consultation with the repair supervisor, deny the offender access to the repair site.
      3. The customer is obligated to provide technical assistance at its own expense, in particular to:
        a. Provision of the necessary and appropriate auxiliary personnel in the number required for the repair and for the required period of time; the auxiliary personnel must follow the instructions of the repair supervisor. The Contractor assumes no liability for the assistants. If a defect or damage is caused by the assistants as a result of instructions from the repair supervisor, the provisions of Sections X and XI of these Terms and Conditions shall apply accordingly.
        b. Performance of all construction, subgrade, and scaffolding work, including the procurement of the necessary building materials.
        c. Provision of the necessary equipment and heavy-duty tools, as well as the necessary supplies and materials.
        d. Provision of heating, lighting, power, and water, including the necessary connections.
        e. Provision of suitable, dry, and lockable rooms for storing the repair staff’s tools.
        f. Protect the repair area and materials from any harmful influences; clean the repair area.
        g. Provision of suitable, theft-proof rest areas and work areas (with heating, lighting, washing facilities, and restrooms) and first aid for repair personnel.
        h. Providing the materials and performing all other actions necessary to calibrate the item being repaired and to conduct the testing specified in the contract.
      4. The customer’s technical assistance must ensure that the repair can begin immediately upon the arrival of the repair personnel and be carried out without delay until the customer accepts the work. If specific plans or instructions from the contractor are required, the contractor shall provide them to the customer in a timely manner.
      5. If the customer fails to fulfill its obligations, the contractor is entitled—but not obligated—after setting a deadline, to perform the actions for which the customer is responsible in the customer’s stead and at the customer’s expense. In all other respects, the contractor’s statutory rights and claims remain unaffected.

      VI. Transportation and Insurance for Repairs at the Contractor’s Facility

      1. Unless otherwise agreed in writing, any delivery and pickup of the item to be repaired—including any packaging and loading—carried out at the customer’s request will be billed to the customer; otherwise, the customer shall deliver the item to be repaired to the contractor at the customer’s expense and shall pick it up from the contractor after the repair has been completed.
      2. The customer bears the risk of loss during transport.
      3. At the customer’s request and at the customer’s expense, the shipment—and, if applicable, the return shipment—will be insured against insurable transport risks, such as theft, breakage, and fire.
      4. There is no insurance coverage during the repair period at the contractor’s facility. The customer must ensure that existing insurance coverage for the item being repaired is maintained, e.g., with regard to fire, water damage, storm, and machinery breakdown insurance. Insurance coverage for these risks may be arranged only at the customer’s express request and at the customer’s expense.
      5. If the customer delays in taking delivery, the contractor may charge storage fees for storing the item at its facility. The contractor may also store the item to be repaired elsewhere at its discretion. The costs and risk associated with storage shall be borne by the customer.

      VII. Repair Timeframe, Repair Delays

      1. The information regarding repair times is based on estimates and is therefore not binding.
      2. The customer may not request that a binding repair deadline—which must be explicitly designated as such—be agreed upon until the scope of the work has been precisely determined.
      3. The binding repair deadline is met if, by the time it expires, the item to be repaired is ready for the customer to take possession of it or, in the case of a contractually stipulated test, ready for that test to be conducted.
      4. In the event of additional or expanded orders placed at a later date, or if additional repair work is necessary, the agreed-upon repair period shall be extended accordingly.
      5. If the repair is delayed due to actions taken in the context of labor disputes, in particular strikes, pandemics (especially COVID-19) and lockouts, as well as the occurrence of circumstances for which the contractor is not at fault, the repair period shall be extended appropriately, provided that such obstacles demonstrably have a significant impact on the completion of the repair
        .
      6. The Contractor is exempt from the obligation to perform repairs in a timely manner if the reason for the inability to perform the repairs is not attributable to the Contractor but is directly or indirectly attributable to the outbreak of the COVID-19 virus (coronavirus). In such cases, force majeure applies. This also applies if the Contractor does not receive deliveries from its suppliers, or does not receive them on time, because those suppliers or the supply chain are affected by the outbreak.
      7. If the Customer grants the Contractor a reasonable period of time to perform after the due date—taking into account the statutory exceptions—and the Contractor fails to meet this deadline, the Customer is entitled to rescind the contract in accordance with statutory provisions. The customer agrees to declare, upon the contractor’s request and within a reasonable period, whether it will exercise its right to rescind the contract. Further claims arising from default shall be governed exclusively by Section XI.3 of these Terms and Conditions.

      VIII. Acceptance

      1. The customer is obligated to accept the repair work as soon as he has been notified of its completion and any contractually required testing of the repaired item has taken place. If the repair is found not to be in accordance with the contract, the contractor is obligated to remedy the defect. This does not apply if the defect is insignificant to the customer’s interests or is attributable to the customer. If the defect is minor, the customer may not refuse acceptance.
      2. If acceptance is delayed through no fault of the contractor, acceptance shall be deemed to have taken place two weeks after notification that the repair has been completed.
      3. Upon acceptance, the contractor’s liability for apparent defects ceases, unless the customer has reserved the right to assert a claim regarding a specific defect.

      IX. Retention of Title, Extended Lien

      1. The Contractor reserves title to all accessories, spare parts, and replacement units used until all payments under the repair contract have been received. Additional security arrangements may be made.
      2. The contractor is entitled to a lien on the customer’s item being repaired—which came into the contractor’s possession pursuant to the contract—based on the contractor’s claim arising from the repair contract. The lien may also be asserted for claims arising from previously performed work, spare parts deliveries, and other services, provided they are related to the item being repaired. With respect to other claims arising from the business relationship, the lien applies only to the extent that such claims are undisputed or have become final and binding.

      X. Claims for Defects

      1. Upon acceptance of the repair, the Contractor shall be liable for defects in the repair, to the exclusion of all other claims by the Customer, without prejudice to Sections 5 and 6 and Section XI of these Terms and Conditions, in such a way that the Contractor must remedy the defects. The customer must immediately notify the contractor in writing of any defect that is discovered.
      2. The contractor shall not be liable if the defect is immaterial to the customer’s interests or is attributable to a circumstance for which the customer is responsible. This applies in particular to parts supplied by the customer.
      3. If the customer or a third party makes any improper modifications or performs repair work without the contractor’s prior consent, the contractor’s liability for the resulting consequences shall be waived. Only in urgent cases where operational safety is at risk
        and to prevent disproportionately large damages—in which case the contractor must be notified immediately—or if the contractor—taking into account the statutory exceptions — has allowed a reasonable deadline set for it to remedy the defect to elapse without result, shall the customer have the right, within the framework of statutory provisions, to remedy the defect itself or have it remedied by third parties and to demand reimbursement of the necessary costs from the Contractor.
      4. In the event of a valid complaint, the contractor shall bear the costs necessary to remedy the defect, provided that this does not impose a disproportionate burden on the contractor.
      5. If the contractor—subject to the exceptions provided by law—allows a reasonable deadline set for him to remedy the defect to elapse without taking action, the customer has the right to a price reduction in accordance with statutory provisions. Only if the repair is demonstrably of no interest to the customer despite the price reduction may the customer rescind the contract.
      6. Any other claims shall be governed exclusively by Section XI.3 of these Terms and Conditions.

      XI. Contractor’s Liability, Disclaimer of Liability

      1. If parts of the item being repaired are damaged due to the contractor’s fault, the contractor shall, at its discretion and at its own expense, repair them, deliver new ones, or provide a replacement. In cases of slight negligence, the costs incurred for this purpose shall be limited to the contractual repair price. Furthermore, liability for damage to the item being repaired shall be governed by Section XI.3 of these Terms and Conditions.
      2. If the item to be repaired cannot be used by the customer in accordance with the contract as a result of the contractor’s negligent omission or erroneous recommendations or advice provided before or after the conclusion of the contract, or as a result of the contractor’s negligent breach of other ancillary contractual obligations —in particular, instructions for the operation and maintenance of the item to be repaired—the customer is unable to use the item in accordance with the contract, then the provisions of Sections X and XI.1 and 3 of these Terms and Conditions shall apply, to the exclusion of any further claims by the customer.
      3. The Contractor shall be liable for damages that did not occur to the item being repaired itself—regardless of the legal grounds—only
        a. in cases of willful misconduct and gross negligence,
        b. in cases of culpable injury to life, limb, or health,
        c. in the case of defects that the Contractor has fraudulently concealed,
        d. within the scope of a warranty commitment,
        e. to the extent that liability exists under the Product Liability Act for personal injury or property damage to items used for private purposes.

        In the event of a culpable breach of material contractual obligations, the Contractor shall also be liable in cases of simple negligence, but only to the extent of reasonably foreseeable damages typical for this type of contract.

        Further claims are excluded.

      XII. Statute of Limitations

      All claims by the customer—regardless of their legal basis—are subject to a 12-month statute of limitations. For claims for damages under Section XI.3 a–c and e of these Terms and Conditions, the statutory limitation periods apply. If the Contractor performs repair work on a structure and thereby causes it to become defective, the statutory limitation periods also apply.

      XIII. Compensation by the Customer

      If, during repair work carried out outside the contractor’s facility and through no fault of the contractor, the equipment or tools provided by the contractor are damaged at the repair site or are lost through no fault of the contractor, the customer is obligated to compensate for such damages. Damage attributable to normal wear and tear shall not be taken into account.

      XIV. Governing Law, Jurisdiction

      1. All legal relationships between the supplier and the purchaser shall be governed exclusively by the laws of the Federal Republic of Germany.
      2. The place of jurisdiction shall be the court with jurisdiction over the Contractor’s place of business. However, the Contractor is entitled to file a lawsuit at the Customer’s principal place of business.
      Download

      Special Terms and Conditions for “Machine Service”

      I. General Information

      1. The following terms and conditions apply to MKW’s “Machine Service” service agreements.
      2. The subject matter is the provision of services for machinery by MKW.
      3. The services to be provided by MKW consist of services related to the diagnosis and resolution of faults in the machine(s) specified in the contract, as well as the preparation of service calls within the response times specified in the contract, provided this is possible via remote maintenance or remote diagnosis.

      II. Provision of Services

      1. MKW will provide the services in accordance with the current state of the art.
      2. MKW will employ only qualified and reliable personnel. It will use only proven methods and tools whose suitability it understands, whose implementation it has mastered, and which correspond to the applicable state of the art.

      III. Troubleshooting

      1. MKW will respond to a defect reported by the customer in accordance with the deadlines specified in the service contract.
      2. MKW will provide a service hotline (telephone hotline) for the contact person designated by the customer to receive reports from the customer. The hotline is staffed 24 hours a day, 7 days a week. Telephone support is available in German and English.

      IV. Service Hours

      1. MKW will provide the services within the service hours agreed upon in the service contract.
      2. If, objectively speaking, the resolution of a malfunction cannot be delayed, MKW will perform such services even outside of regular service hours (“extended service hours”). MKW is entitled to charge an additional fee for services provided during extended service hours. The surcharge is calculated according to the scale specified in the contract. Services for which MKW is responsible are exempt from these surcharges.

      V. Other Troubleshooting and Customization Services, Consulting

      1. At the customer’s request and based on a separate order, MKW will perform other troubleshooting and customization services, in particular:
        – Modifications to the machine, in particular adaptation to new products and services as well as to changes in the customer’s operational processes;
        – Adaptation of the machine to changes in the customer’s hardware and/or software environment, including new program versions (e.g., new releases, updates/upgrades) of third-party software used in the system;
        – Rectification of malfunctions resulting from improper operation of the machine by the customer, force majeure, third-party interference, or other causes not attributable to MKW;
        – Other adjustments, additions, and enhancements to the machine as requested by the customer;
        – Consulting services.
      2. MKW’s entitlement to compensation is contingent upon a written order from the customer.
      3. MKW may refuse to provide other troubleshooting and customization services, as well as consulting services, only if it can be demonstrated that performing such services is unreasonably burdensome within the scope of its operational capacity.

      VI. Customer Cooperation

      1. Reports of machine malfunctions must always be made by phone via the service hotline. If a report is not made via the service hotline, the customer waives the contractually agreed-upon response time. The telephone report must include the customer’s name, the name of the contact person, and a callback number. A brief description of the fault may also be provided.
      2. The Customer shall grant MKW on-site access to its premises during regular business hours and to the extent necessary, as well as access to the hardware and software required for the provision of services, and shall provide the necessary technical equipment. To the extent required by the urgency of the respective service, access shall also be granted outside the Customer’s regular business hours. MKW shall ensure that its on-site activities disrupt the Customer’s business operations as little as possible.

      VII. Compensation

      1. The customer shall pay MKW monthly for its services in accordance with the contractually agreed scope of services, plus applicable sales tax. The due date shall be determined by the deadline specified in the contract.
      2. A separate fee is due for the services to be provided pursuant to Section V, which is determined in accordance with a separate offer from MKW. The parties are free to agree on a different fee structure for these services.

      VIII. Material and Legal Defects

      1. MKW guarantees that the services it is contractually obligated to provide are free from defects and from any third-party rights.
      2. If the services covered by this contract infringe the intellectual property rights of third parties, the Customer shall immediately notify MKW in writing and provide MKW with the information necessary to defend against such claims, as well as any other reasonable assistance.
      3. MKW shall, at its own expense and at its discretion, either obtain the necessary rights of use for the customer or modify the services covered by the contract so that they no longer infringe on the intellectual property rights of third parties but continue to comply with the contractual agreements. In the latter case, MKW will carry out all necessary conversions, modifications, adjustments to documentation, training, etc. If MKW is unable to grant the necessary rights of use or to modify the contractual services accordingly, the customer is entitled to terminate the contract immediately. The Customer’s right to assert further claims for damages remains unaffected.
      4. In the event of an infringement of third-party intellectual property rights, MKW shall indemnify the customer against all resulting claims and demands for damages, as well as against the costs of legal defense in a reasonable amount, upon presentation of supporting documentation. This indemnification is subject to the condition that the customer shall not settle or acknowledge the claims asserted by the third party without MKW’s prior written consent.

      IX. Liability

      1. MKW has unlimited liability
        —in cases of willful misconduct or gross negligence,
        —for injury to life, limb, or health,
        —in accordance with the provisions of the Product Liability Act, and
        —to the extent of any warranty assumed by MKW.
      2. In the event of a breach of duty due to slight negligence, where such duty is essential to achieving the purpose of the contract (cardinal obligation), MKW’s liability is limited to the amount of damages that are foreseeable and typical given the nature of the transaction in question.
      3. MKW assumes no further liability.
      4. The foregoing limitation of liability also applies to the personal liability of MKW’s employees, agents, and governing bodies.

      X. Term and Termination

      1. The contract begins when MKW receives the customer’s order. The order must be received before the start of the respective month and is valid for a period of one month or 12 months.
      2. The customer is entitled to terminate the 12-month contract for cause during the fixed term, effective at the end of any month, provided one month’s notice is given. In the event of early termination, the discount granted in advance will be charged for the actual contract term.
      3. The right of both parties to terminate the contract for cause remains unaffected. Good cause exists, in particular, if the financial situation of the other party deteriorates significantly, if insolvency proceedings are initiated against the other party’s assets or if the initiation of such proceedings is rejected due to lack of assets, or if the underlying service contract is terminated by notice of termination, withdrawal, rescission, or in any other manner.
      4. Any notice of termination must be in writing.

      XI. Confidentiality

      1. “Confidential Information” means all information and documents of the other party that are marked as confidential or that, given the circumstances, are to be regarded as confidential, in particular information regarding operational processes, business relationships, and know-how, as well as—for MKW—all work results.
      2. The parties agree to maintain confidentiality regarding such confidential information. This obligation shall remain in effect for a period of 5 years following the termination of the contract.
      3. Excluded from this obligation is any confidential information that
        a) information that the recipient can demonstrate was already known to it at the time the contract was concluded, or that becomes known to it from a third party thereafter, provided that such disclosure does not violate any confidentiality agreement, statutory provisions, or official orders;
        (b) that are publicly known at the time the contract is concluded or are subsequently made public, provided that such disclosure does not result from a breach of this contract;
        c) that must be disclosed due to legal obligations or by order of a court or government authority. To the extent permitted and possible, the recipient required to disclose such information shall notify the other party in advance and give it the opportunity to object to the disclosure.
      4. The parties shall grant access to confidential information only to those advisors who are bound by professional confidentiality or who have previously been subject to obligations consistent with the confidentiality provisions of this Agreement. Furthermore, the parties will disclose the confidential information only to those employees who need to know it for the performance of the Agreement, and will require such employees to maintain confidentiality even after their employment ends, to the extent permitted by labor law.
      5. For any culpable breach of the foregoing confidentiality obligations and/or those arising from applicable statutory provisions (e.g., Sections 17, 18 of the Unfair Competition Act) shall result in the party responsible for such breach agreeing to compensate the disclosing party for any demonstrable damages incurred. Further claims by the parties remain unaffected.

      XII. Data Protection and Information Security

      1. In providing the services required under the contract, MKW will comply with all applicable laws and regulations regarding the protection of personal data.
      2. MKW has implemented appropriate, state-of-the-art organizational and technical measures to ensure the availability, integrity, authenticity, and confidentiality of its information systems, components, and processes used in the provision of services, as well as all data provided by the
        customer or otherwise made available. These requirements also apply to communication and collaboration with the customer. When using systems not under its control, the customer must impose corresponding obligations on its contractual partners and regularly monitor their compliance. MKW is further obligated to perform regular data backups to the extent necessary.
      3. The customer is entitled to verify compliance with data security requirements at any time, provided that at least 14 business days’ prior written notice is given
        . To this end, MKW must grant the customer access, during its normal business hours, to its business facilities relevant to the audit, in particular its IT systems.

      XIII. Miscellaneous

      1. In the event of any conflict with contracts already concluded between the parties, the provisions of the Machine Service Agreement shall take precedence.
      2. The customer may assign claims against MKW arising from the contract to third parties only with MKW’s written consent.
      3. Each party may set off only against claims of the other party that are undisputed or have been finally and conclusively determined.
      4. Any amendments or additions to this Agreement must be made in writing. This also applies to any amendment or cancellation of this clause.
      5. The general terms and conditions of both parties do not apply.
      6. The contract entered into shall be governed by German law, to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods of April 11, 1980 (UN Sales Convention). The parties are aware that the agreed-upon services may be subject to export and import restrictions. MKW will comply with the applicable export and import control regulations of the Federal Republic of Germany and the European Union, as well as all other relevant regulations. MKW’s performance of the contract is subject to the condition that no obstacles to performance arise from national and international export and import regulations or any other statutory provisions.
      7. The place of performance is Wuppertal. The exclusive venue for legal proceedings is Wuppertal, provided that either party is a merchant or a legal entity under public law.
      Download

      Special Terms of Service for “MK|Ware”

      I. General Information

      1. The following terms and conditions apply to the MKW “MK|Ware” service agreements.
      2. The subject matter of this agreement is the provision of services by MKW for the software product “MK|Ware.”
      3. The services to be provided by MKW consist of services related to the diagnosis and resolution of errors in the “MK|Ware,” as well as the preparation of service calls within the contractually specified response times, provided this is possible via remote maintenance or remote diagnosis.

      II. Provision of Services

      1. MKW will provide the services in accordance with the current state of the art.
      2. MKW will employ only qualified and reliable personnel. It will use only proven methods and tools whose suitability it understands, whose implementation it has mastered, and which correspond to the applicable state of the art.

      III. Troubleshooting

      1. MKW will respond to a defect reported by the customer in accordance with the deadlines specified in the service contract.
      2. MKW will provide a service hotline (telephone hotline) for the contact person designated by the customer to receive reports from the customer. The hotline is staffed 24 hours a day, 7 days a week. Telephone support is available in German and English.

      IV. Service Hours

      1. MKW will provide the services within the service hours agreed upon in the service contract.
      2. MKW cannot provide services outside of the agreed-upon service hours, even if the malfunction that has occurred objectively cannot be delayed.

      V. Other Troubleshooting and Customization Services, Consulting

      1. At the customer’s request and based on a separate order, MKW will perform other troubleshooting and customization services, in particular:
        – Modifications to the software, in particular adaptation to new products and services as well as to changes in the customer’s business processes;
        – Adaptation of the software to changes in the customer’s hardware and/or software environment, including new program versions (e.g., new releases, updates/upgrades) of third-party software used in the system;
        – Rectification of malfunctions resulting from improper use of the software by the customer, force majeure, third-party interference, or other causes not attributable to MKW;
        – Other customizations, additions, and enhancements to the software as requested by the customer;
        – Consulting services.
      2. MKW’s entitlement to compensation is contingent upon a written order from the customer.
      3. MKW may refuse to provide other troubleshooting and customization services, as well as consulting services, only if it can be demonstrated that performing such services is unreasonably burdensome within the scope of its operational capacity.

      VI. Customer Cooperation

      1. Reports of software defects must generally be made by phone through the service hotline. If a report is not made through the service hotline, the customer waives the contractually agreed-upon response time. The telephone report must include the customer’s name, the name of the contact person, and a callback number. A brief description of the error may also be provided.
      2. The Customer shall grant MKW on-site access to its premises during regular business hours and to the extent necessary, as well as access to the hardware and software required for the provision of services, and shall provide the necessary technical equipment. To the extent required by the urgency of the respective service, access shall also be granted outside the Customer’s regular business hours. MKW shall ensure that its on-site activities disrupt the Customer’s business operations as little as possible.

      VII. Compensation

      1. The customer shall pay MKW monthly for its services in accordance with the contractually agreed scope of services, plus applicable sales tax. The due date shall be determined by the deadline specified in the contract.
      2. A separate fee is due for the services to be provided pursuant to Section V, which is determined in accordance with a separate offer from MKW. The parties are free to agree on a different fee structure for these services.

      VIII. Material and Legal Defects

      1. MKW guarantees that the services it is contractually obligated to provide are free from defects and from any third-party rights.
      2. If the services covered by this contract infringe the intellectual property rights of third parties, the Customer shall immediately notify MKW in writing and provide MKW with the information necessary to defend against such claims, as well as any other reasonable assistance.
      3. MKW shall, at its own expense and at its discretion, either obtain the necessary rights of use for the customer or modify the services covered by the contract so that they no longer infringe on the intellectual property rights of third parties but continue to comply with the contractual agreements. In the latter case, MKW will carry out all necessary conversions, modifications, adjustments to documentation, training, etc. If MKW is unable to grant the necessary rights of use or to modify the contractual services accordingly, the customer is entitled to terminate the contract immediately. The Customer’s right to assert further claims for damages remains unaffected.
      4. In the event of an infringement of third-party intellectual property rights, MKW shall indemnify the customer against all resulting claims and demands for damages, as well as against the costs of legal defense in a reasonable amount, upon presentation of supporting documentation. This indemnification is subject to the condition that the customer shall not settle or acknowledge the claims asserted by the third party without MKW’s prior written consent.

      IX. Liability

      1. MKW has unlimited liability
        —in cases of willful misconduct or gross negligence,
        —for injury to life, limb, or health,
        —in accordance with the provisions of the Product Liability Act, and
        —to the extent of any warranty assumed by MKW.
      2. In the event of a breach of duty due to slight negligence, where such duty is essential to achieving the purpose of the contract (cardinal obligation), MKW’s liability is limited to the amount of damages that are foreseeable and typical given the nature of the transaction in question.
      3. MKW assumes no further liability.
      4. The foregoing limitation of liability also applies to the personal liability of MKW’s employees, agents, and governing bodies.

      X. Term and Termination

      1. The contract begins when MKW receives the customer’s order. The order must be received before the start of the respective month and is valid for a period of one month or 12 months.
      2. The customer is entitled to terminate the 12-month contract for cause during the fixed term, effective at the end of any month, provided that 4 weeks’ notice is given. In the event of early termination, the discount granted in advance will be charged for the actual contract term.
      3. The right of both parties to terminate the contract for cause remains unaffected. Good cause exists, in particular,
        – if the financial situation of the other party deteriorates significantly,
        – if insolvency proceedings are initiated against the other party’s assets or if the initiation of such proceedings is rejected due to lack of assets, or if the underlying service contract is terminated by notice of termination, withdrawal, rescission, or in any other manner.
      4. Any notice of termination must be in writing.

      XI. Confidentiality

      1. “Confidential Information” means all information and documents of the other party that are marked as confidential or that, given the circumstances, are to be regarded as confidential, in particular information regarding operational processes, business relationships, and know-how, as well as—for MKW—all work results.
      2. The parties agree to maintain confidentiality regarding such confidential information. This obligation shall remain in effect for a period of 5 years following the termination of the contract.
      3. Excluded from this obligation is any confidential information that
        a) information that the recipient can demonstrate was already known to it at the time the contract was concluded, or that becomes known to it from a third party thereafter, provided that such disclosure does not violate any confidentiality agreement, statutory provisions, or official orders;
        (b) that are publicly known at the time the contract is concluded or are subsequently made public, provided that such disclosure does not result from a breach of this contract;
        c) that must be disclosed due to legal obligations or by order of a court or government authority. To the extent permitted and possible, the recipient required to disclose such information shall notify the other party in advance and give it the opportunity to object to the disclosure.
      4. The parties shall grant access to confidential information only to those advisors who are bound by professional confidentiality or who have previously been subject to obligations consistent with the confidentiality provisions of this Agreement. Furthermore, the parties will disclose the confidential information only to those employees who need to know it for the performance of the Agreement, and will require such employees to maintain confidentiality even after their employment ends, to the extent permitted by labor law.
      5. For any culpable breach of the foregoing confidentiality obligations and/or those arising from applicable statutory provisions (e.g., Sections 17, 18 of the Unfair Competition Act) shall result in the party responsible for such breach agreeing to compensate the disclosing party for any demonstrable damages incurred. Further claims by the parties remain unaffected.

      XII. Data Protection and Information Security

      1. In providing the services required under the contract, MKW will comply with all applicable laws and regulations regarding the protection of personal data.
      2. MKW has implemented appropriate, state-of-the-art organizational and technical measures to ensure the availability, integrity, authenticity, and confidentiality of its information systems, components, and processes used in the provision of services, as well as all data provided by the
        customer or otherwise made available. These requirements also apply to communication and collaboration with the customer. When using systems not under its control, the customer must impose corresponding obligations on its contractual partners and regularly monitor their compliance. MKW is further obligated to perform regular data backups to the extent necessary.
      3. The customer is entitled to verify compliance with data security requirements at any time, provided that at least 14 business days’ prior written notice is given. To this end, MKW must grant the customer access, during its normal business hours, to its business facilities relevant to the audit, in particular its IT systems.

      XIII. Miscellaneous

      1. In the event of any conflicts with agreements already concluded between the parties, the provisions of the “MK|Ware” Service Agreement shall take precedence.
      2. The customer may assign claims against MKW arising from the contract to third parties only with MKW’s written consent.
      3. Each party may set off only against claims of the other party that are undisputed or have been finally and conclusively determined.
      4. Any amendments or additions to this Agreement must be made in writing. This also applies to any amendment or cancellation of this clause.
      5. The general terms and conditions of both parties do not apply.
      6. The contract entered into shall be governed by German law, to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods of April 11, 1980 (UN Sales Convention). The parties are aware that IT services may be subject to export and import restrictions. In particular, licensing requirements may apply, or the use of the software or related technologies abroad may be subject to restrictions. MKW shall comply with the applicable export and import control regulations of the Federal Republic of Germany and the European Union, as well as all other relevant regulations. MKW’s performance of the contract is subject to the condition that no obstacles arising from national and international export and import regulations or any other legal provisions prevent such performance.
      7. The place of performance is Wuppertal. The exclusive venue for legal proceedings is Wuppertal, provided that either party is a merchant or a legal entity under public law.
      Download