General terms and conditions


General terms and conditions for the service and repair of traction vehicles

1) Scope:

a) These general terms and conditions (hereinafter: terms) apply to all service and repair contracts (hereinafter: work contract) for traction vehicles between Lokservice Wolf Gmbh and the contract partner.

b) These general terms and conditions apply exclusively; other terms shall not become part of the contract even if we do not expressly object to them, and the contract concluded with you shall be executed without reservation in the knowledge of conflicting, supplementary or deviating terms.

c) All agreements must be made in writing. This also applies to ancillary agreements, amendments to the contract as well as the cancellation of this written form clause. Annexes to the contract which make a binding provision with regard to the execution of the contract are considered as an integral part of the contract.

d) These general terms and conditions apply to all amendments and additions to this contract and all subsequent business relationships even if they are not expressly agreed again.

e) We do not guarantee quality or durability.

f) Technical information, descriptions or illustrations of the traction vehicle in offers, contracts, brochures, operating manuals or other information documents do not constitute a guarantee of quality (guarantee of quality within the meaning of sections 444/ 639 of the German Civil Code (BGB)). We do not assume any guarantee for the quality of the traction vehicle or that the traction vehicle will retain a specific quality for a specific period of time, unless this information or other information documents are expressly referred to as a quality or durability guarantee.

g) According to the previous paragraph, advertising statements do not constitute any guarantee of quality or durability unless they are expressly designated as such.

2) Conclusion of contract:

a) Our offers are non-binding unless expressly agreed otherwise.

b) The contract for work is deemed to have come about when both parties have signed the contract for work and services, you have signed and returned a form of the order confirmation sent to you without changes, or we have sent you a commercial confirmation letter.

c) Silence on our part (in particular section 362 of the German Commercial Code) does not result in a work contract.

d) If the work contract is concluded on the basis of a cost estimate, we can refer to the cost estimate.

e) As far as possible, we will inform you of the expected costs when the contract is concluded. You can set cost limits in your order confirmation at your discretion. If a service or repair cannot be carried out at these costs or if we consider additional work to be necessary during the execution, we will obtain your consent if the expected costs are exceeded by more than 20%. You hereby declare your consent to exceeding the cost limit or our cost estimate by up to 20%. For the calculation of the additional amount, we will apply the usual remuneration.

f) Exceeding the cost limit or our cost estimate is deemed approved by you if the excess is based on your instructions or your wishes and these instructions or wishes were not known to us at the time of the cost estimate or the determination of the cost limit and also not at the time the contract was concluded. For the calculation of the additional amount, we will apply the usual remuneration.

3) Unfeasible/non-performed service:

a) Regardless of whether the service is successful, remuneration at the amount of the actual expenditure incurred (in particular for working hours) must also be paid for our services if the service cannot be carried out for reasons for which we are not responsible, in particular because the fault complained of did not occur during the inspection, spare parts cannot be procured or you have culpably missed the agreed appointment.

b) If you terminate the contract during execution or before completion, section 649 of the German Civil Code shall apply.

c) In the cases mentioned under a), the item only needs to be restored to its original state on your express request against reimbursement of costs. This does not apply if the work carried out was not necessary.

4) Co-operation and technical assistance in the provision of services outside our factory premises:

If the place of performance is outside our factory premises, the following applies:

a) The traction vehicle must be deployed in such a way that our technicians are guaranteed safe, dry work.

b) You must ensure that the item is provided to us in a cleaned state for the provision of services. If this is not the case, resulting in damage when the service is performed, we shall not be liable for this – subject to liability under clause 11 of these provisions.

c) You shall take the necessary measures to protect our employees and parts at the place of performance. This also includes the provision of first aid to our employees. You shall inform our employees of any existing special safety regulations and the local conditions, insofar as these are of importance to our employees.

d) If our contractual offer is based on assistance you have assured to us, you must make this available to us at your own expense. You must have the following assistance and materials readily available at the place of performance, regardless of other agreements:
- Provision of plans, instructions or technical drawings of the locomotive. If it is required that we provide such plans, we will bring them with us.
- Provision of the necessary devices and heavy tools as well as any necessary commodities and materials.
- Provision of heating, lighting, operating power, water including the necessary connections.
- Protection of the place of performance and the materials from harmful influences of any kind as well as cleaning of the place of performance.
- Provision of assistants who are usually required to carry out service and repair work.

e) You are responsible for ensuring that the performance of services can begin immediately after the arrival of our employees and can be carried out without delay until acceptance. In particular, the item, e.g. a traction vehicle, shall be kept ready at a suitable location for the service or repair work, which means that our technicians must be able to drive up close to the traction vehicle with their service vehicle without hindrance and safe, dry work is guaranteed. If clear-track signalling or track closure is necessary, this is also your responsibility.

f) Waiting times of our fitters shall be borne by you.

5) Service and repair times:

a) Information about the duration of the services is based on estimates and is therefore not binding.

b) You can only demand the agreement of a binding deadline when the exact scope of the work has been determined. The agreed period shall be extended appropriately in case of additional and extension orders placed at a later date or in case of additional work required.

c) Our delay begins only subject to timely delivery to ourselves by our suppliers.

d) The handover date will be postponed accordingly if the completion of the traction vehicle is made significantly more difficult or impossible for us due to force majeure. Force majeure occurs in case of events that are beyond our area of ​​responsibility or that of our sub-suppliers and includes: fire, flood, industrial disputes, operational disruptions, non-delivery by sub-contractors, terrorist attacks and administrative orders, which cannot be attributed to our operational risk.

e) Further claims for damages and liability due to a delay in performance for which we are responsible or claims for damages in lieu of the performance that go beyond clauses 5b) and 5c) are finally regulated in clauses 7 and 8.

f) Of course, we will inform you immediately about delays, as far as this is possible and reasonable for us.

g) If you suffer a loss as a result of our delay, you are entitled to set a reasonable deadline for performance after the due date. If this deadline is not met, you are entitled to withdrawal within the framework of the statutory provisions.

h) Further claims for damages and liability due to a delay in performance for which we are responsible or claims for damages in lieu of performance that go beyond number 5g) are finally regulated in numbers 9 and 10.

6) Acceptance:

a) You are obliged to accept our service or repair work immediately as soon as we have informed you of their completion.

b) We prepare a log or a fitter's report of the acceptance. When both parties sign it, the handover is deemed to have been duly performed. If you accept the traction vehicle despite knowledge of an obvious defect, you must state during the hand-over that the defect is put under reservation. Otherwise you cannot assert any claims for defects.

c) If no express acceptance takes place, the service is deemed to have been accepted if you put the item back into operation or otherwise implicitly declare acceptance. Irrespective of this, acceptance is deemed to have taken place properly after a period of two weeks has elapsed since notification of the completion of the service.

d) If the traction vehicle is not handed over on the agreed day for a reason for which you are responsible, the risk shall transfer to you. We can also charge you a daily demurrage of €100.00. The traction vehicle can then also be stored elsewhere at our discretion. Our liability for damage in these cases is limited to the care that we use in our own affairs, according to BGB section 277. Further claims for damages or reimbursement of expenses on our part remain unaffected.

7) Remuneration:

a) When calculating the service, we show the prices for the material sold and additional services separately. If services are carried out on the basis of a cost estimate, we can refer to the cost estimate. Any deviations from this are of course listed separately.

b) We are entitled to a lien on the item that has come into our possession from this claim on the basis of this contract. The right of lien can also be asserted due to claims from work previously carried out for you by us, spare part deliveries and other services, insofar as these are related to the item or its parts. The right of lien only applies to other claims arising from the business relationship if they are undisputed or have been legally established.

c) All prices are ex our place of business and do not include value added tax. Any deductions, e.g. discounts, are not permitted.

d) The total purchase price, less down payments made, is due immediately upon provision of the goods or service.

e) If you do not make due payments within two weeks, you shall be in arrears. Payment deadlines are deemed to have been met if we are able to dispose of the amount within the deadline.

f) If you are in arrears with a payment, we may charge default interest of 8% p.a. above the base interest rate announced by the European Central Bank in accordance with BGB sections 247 and 288. We can claim a higher damage caused by delay if we have incurred this.

g) If you want to object to the invoice, you must do so in writing and immediately after receipt of the invoice.

h) If during the period of validity of the offer or after the contract has been signed, laws, ordinances, regulations, standards, administrative orders or agreements of any kind come into force which increase or decrease the costs for the performance of the contract or make the performance of our contractual obligations more difficult, the contract price shall be adjusted accordingly. However, a price increase is excluded if you are not an entrepreneur and the price increase relates to goods or services that are to be delivered or provided within four months after conclusion of the contract, provided that the delivery is not part of a continuing obligation.

8) Property:

a) The accessories, spare parts and replacement units installed or used by us (in the following: parts) shall remain in our property until full payment of the services as well as of interest, costs and other ancillary costs of the work contract we have incurred, as well as until fulfilment of all claims we are entitled to from you from the business relationship.

b) If parts, assemblies or entire components are exchanged, the removed parts become our property.

9) Warranty and indemnification:

a) All warranty claims and claims for damages are based exclusively on these terms.

b) The limitation period for warranty claims is based on the individual contractual agreement in the work contract. If no provision is made in the work contract, these claims expire for new parts no later than 12 months and for reconditioned components 3 months after acceptance. The legal regulations on suspension and restart of the periods remain unaffected.

c) There shall be no warranty claims in case of only insignificant deviations from the agreed quality, in case of only insignificant impairment of usability, natural wear and tear or damage that occurs after the transfer of risk as a result of incorrect or negligent handling by you or third parties, excessive stress by you or third parties, the use of unsuitable operating materials caused by you or third parties or due to special external influences that are not required by the contract, as well as non-reproducible software errors.

d) In case of production according to precise plans, templates and instructions on your part, our warranty shall be limited to the execution of the goods in accordance with the precise specifications of the plans.

e) Professional maintenance by trained fitters is essential to maintain the warranty claims. Non-compliance with the regular deadlines jeopardizes the warranty claims. If you violate your obligations, we shall be released from the warranty obligation.

f) We shall not be liable under the warranty for deterioration of the traction vehicle or defects whose cause can be attributed to improper modifications or repair work carried out by you or third parties without our prior consent.

g) You are obliged to notify us of the defect in writing immediately after it occurs, stating the location of the traction vehicle. The rectification of the defect shall then be clarified operationally by our respective service manager. If you do not report the defect immediately, we shall be released from the warranty obligation.

h) After you have reported a defect, we must always be given the opportunity to remedy the defect within a reasonable period of time. Subsequent performance shall be limited to eliminating the defect (rectification). If the reported defect is not remedied after two or three attempts at the latest, you can withdraw from the contract or demand a reduction of the remuneration.

i) If parts, assemblies or entire components are replaced as part of the repair, no new limitation periods for warranty claims shall come into effect.

j) Of the direct costs arising from correcting the defect, we shall bear the costs of the replacement part and shipment, provided that the complaint proves to be justified. We shall also bear the costs of removal and installation as well as the costs of our employees, including their travel expenses, provided that this does not result in a disproportionate burden on our part. Your expenses for the purpose of subsequent performance shall be excluded if the traction vehicle subsequently has to be taken to a location other than the location where the defect first appeared.

k) If you report a defect and it turns out at the site that all parts of the work to be carried out do not fall under the scope of the warranty, you already agree that the reported work shall be treated as an order subject to remuneration.

l) Only in urgent cases (e.g. endangered operational safety or to prevent relatively large damage), in which case we must be informed immediately or if we have allowed a reasonable period of time to remedy the defect to expire, shall you have the right to repair the defect yourself or to have it eliminated by third parties and to demand reimbursement of the necessary costs from us.

m) Inspection intervals are exempt from the warranty, since only the function of the device is certified.

n) We assume no liability for spare parts provided by the customer.

o) Without prejudice to clauses 5, 9 and 10 of these terms, all further claims shall be excluded.

10) Liability and disclaimer:

a) We are liable for damages according to the legal conditions for personal injury and for damage according to the product liability law.

b) We are liable in accordance with the legal provisions for damage caused by malicious behaviour and for damage caused by intent or gross negligence on the part of our management or our executives.

c) We are liable for damages for
- damage resulting from a slightly negligent breach of essential contractual obligations or cardinal obligations,
- damage caused by our simple vicarious agents through gross negligence or intentionally without breaching essential contractual obligations or cardinal obligations. We are not liable for lost profits, indirect damage, consequential damage and third-party claims, with the exception of claims arising from the infringement of third-party property rights.
- Our liability for damages is limited to the amount of the contractually typical, foreseeable damage.

d) Contributory fault on your part shall be offset against the amount of any claim for damages.

e) Any further claims for damages and liability are finally regulated in clauses 5 and 8.

f) You are obliged to immediately notify us or have us record any damage within the meaning of these liability regulations, and to take all measures necessary to reduce the damage without delay.

11) Termination or withdrawal for good reason:

a) If there is an important reason, we may withdraw from the contract or terminate it before delivery. This shall apply in particular if

- you no longer meet your general payment obligations,
- you have filed an application for the opening of insolvency proceedings,
- another person has filed an application for the opening of insolvency proceedings against you and the application has not been withdrawn within 2 weeks or rejected by the court within 2 weeks,
- the insolvency proceedings regarding your assets were rejected due to a lack of assets.

b) We shall also be entitled to withdraw if you are more than two weeks in arrears with an agreed down payment.

12) Assignment, offsetting and retention:

Please note that you

a) must not assign rights and obligations arising from this contract to third parties without our written consent.

b) must not offset your own claims against us, except for undisputed or legally established claims.

c) must not counter our payment claims by any rights of retention, including notification of defects, unless they are agreed in the contract.

13) Severability clause, invalidity:

a) If individual clauses of these terms are wholly or partially invalid, this shall not affect the validity of the remaining terms.

b) If one of these terms is completely or partially invalid, both parties agree to a regulation by means of which the purpose intended in the invalid terms is largely achieved in the economic result.

14) Place of performance, place of jurisdiction, applicable law:

a) The place of jurisdiction is Pirna.

b) In the event of disputes, all parties shall first attempt to settle them amicably.

c) Excluding the work and/or framework contract, the applicable substantive law includes these terms and the law of the Federal Republic of Germany. The application of the UN Sales Convention shall be excluded.