§ 1 General - Scope
1. The terms and conditions apply to all current services provided by Monteurpower GmbH (hereinafter: Monteurpower T&Cs). They also apply to supplementary and subsequent orders, where the subject of the order is similar.
2. The terms and conditions of the client or third parties do not apply, even if their application has not been specifically rejected in the Monteurpower T&Cs in individual cases. Even if the Monteurpower T&Cs refer to correspondence which contains or refers to the terms and conditions of the client or a third party, this does not constitute an acknowledgement of the applicability of such terms and conditions.
3. These T&Cs apply only to commercial contractors, public law legal persons or special funds under public law. A commercial contractor within the meaning of the T&Cs is any natural or legal person or a partnership having legal capacity with whom a commercial relationship is entered into and who is acting in furtherance of a commercial or independent activity.
§ 2 Offer and conclusion of the contract
1. Unless there is an important reason in accordance with § 3(6), Monteurpower GmbH is only bound to its written offer to the extent and for the period specified in the offer. Monteurpower GmbH may state that the offer is not binding in nature, either in whole or in part, for example by the inclusion of the words "Non-binding offer". Where Monteurpower GmbH excludes the binding nature of the offer. either in whole or in part, Monteurpower GmbH is entitled to reserve the right to revoke its offer up until the point of acceptance, where it is prevented from performing the services stated in the offer due to the acceptance of other jobs in the meantime. Reservation of this kind may be indicated on the offer for example by the inclusion of the words "Offer non-binding subject to availability".
2. A contract is not formed until a written agreement is entered into or there is written confirmation of the order offer from Monteurpower GmbH, and in any case no later than by the commencement of the provision of the service. The type and scope of the services to be provided by Monteurpower GmbH are - unless otherwise agreed - determined solely in accordance with the content of the order and/or the confirmation of the order offer.
3. Details on the website of Monteurpower GmbH do not represent either the provision of a guarantee or the acceptance of a risk in respect of quality.
§ 3 Services
1. The client and Monteurpower GmbH enter into a contract for services in each case. Monteurpower GmbH reserves the right to task servants or agents (subcontractors) with the fulfilment of the contract for services.
2. Objections to the servants or agents must be notified to Monteurpower GmbH no later than the first day of performance of the order and/or immediately after the grounds for the objection becomes known. Where the objection is justified, the client is entitled to demand in writing that the servants or agents be substituted. If the client breaches its obligation to lodge a complaint, it cannot derive any rights from same.
3. The deadlines and periods specified in the contract for the fulfilment of the service are non-binding details, unless Monteurpower GmbH has expressly stated in writing that the deadline for fulfilment is binding or that time is of the essence. The deadlines for the provision of the service are in this respect agreed in accordance with Monteurpower GmbH's anticipated capacity and are non-binding and subject to timely availability on the part of Monteurpower GmbH's cooperating partners as well as unforeseen circumstances and obstacles, irrespective of whether these affect Monteurpower GmbH or its cooperating partner, in particular force majeure, government action, failure by the authorities to grant permissions, industrial action of any kind, sabotage etc.
4. A binding, agreed time for the provision of the service shall be extended by a reasonable period where Monteurpower GmbH is prevented from complying with it due to circumstances for which neither it nor its bodies, servants or agents are responsible. For the avoidance of doubt, a precondition for compliance with the deadlines is provision to Monteurpower GmbH by the client of all documentation, drawings, originals, plans, approvals, consents required for cooperation, compliance with the agreed payment terms and the provision of material, information and equipment necessary for the successful and complete provision of the service. If the client does not fulfil this obligation to cooperate in respect of Monteurpower GmbH, the deadline for fulfilment will be extended by the duration of the corresponding delay.
5. If the provision of the service is delayed due to circumstances for which the client is responsible or at its request, Monteurpower GmbH is entitled to demand reimbursement for the additional expenses incurred. The client is entitled to provide evidence of lesser damage.
6. Monteurpower GmbH is entitled at any time to refuse to provide the service in whole or in part and irrespective of whether the offer was stated to be binding in nature, if there is a significant reason. A significant reason would include for example employing the service provider at an illegal event, exceeding a credit limit granted by Monteurpower GmbH in accordance with § 4(7) or a negative outcome of a credit check (e.g. by SCHUFA, Creditreform etc.).
7. If the job order for Monteurpower GmbH also contains a contractual obligation to produce a work in addition to the provision of a service, a separate contract will be entered into in this regard.
§ 4 Remuneration, payment terms
1. The client pays Monteurpower GmbH the remuneration agreed or specified in the individual order for the specified services. All prices are net prices and are subject to the VAT applicable in the respective country of delivery (place of performance). Agreed hourly rates will be charged in full without deductions for breaks and for each hour commenced. The minimum working time per day and per booked fitter is five hours, i.e. even if less time is worked on the day a minimum of five hours per fitter / day must be paid by the client.
2. The provision of services by Monteurpower GmbH is conducted on foot of payment in advance - particularly for new customers - unless otherwise expressly agreed. If a discount has been contractually agreed, this will be taken into account in the advance payment.
a) If the client is in default of the advance payment, Monteurpower GmbH is entitled at its discretion to demand payment of the advance payment or security for the full amount of the order within a grace period to be set for the client. If this grace period expires without payment, Monteurpower GmbH may rescind the contract and claim damages.
b) If Monteurpower GmbH commences providing the service initially without an advance payment or with only partial advance payment, it is nonetheless entitled at any time to make continued performance of the job dependent on payment in advance of the full amount of the order, less any discount which may have been agreed. The commencement of the service without advance payment does not constitute a waiver by Monteurpower GmbH of the right to demand advance payment of the amount of the order.
c) If Monteurpower GmbH demands advance payment during a job that has already begun and makes continued performance dependent on advance payment, in order to ensure that the job continues smoothly the advance payment shall be evidenced by the client in the form of suitable documentation or paid in cash. The client shall in its own interests provide prompt advance payment and, if necessary, evidence of payment.
d) If, despite demand, the client does not provide advance payment immediately and evidence same by the provision of suitable documentation, Monteurpower GmbH is entitled to rescind the contract and claim damages.
3. If Monteurpower GmbH has not exercised its right to advance payment and unless otherwise specified in the offer from Monteurpower GmbH, the sum invoiced is due for payment fourteen days after the invoice date and submission of the invoice, without discount or retention.
a) In respect of invoicing, submission by fax or e-mail is sufficient.
b) Discounts require a separate written agreement and are related to the content of the order offer. Whether a payment or discount has been made on time is determined by the point at which the sum due is credited to the business account of Monteurpower GmbH or cash is handed over.
c) For transfers to the business account of Monteurpower GmbH which is held in a bank or savings institution situated in Germany, any bank charges or other transaction costs incurred must be paid by the client.
4. Unless otherwise agreed in writing, all payments must be in cash or by bank transfer. Cheques will only be accepted as conditional payment and by special arrangement. If the payment deadline is missed Monteurpower GmbH is entitled without further demand to claim interest for default at a rate of eight percentage points above the respective base interest rate. This does not affect the right to claim additional damages for delay.
5. Monteurpower GmbH is entitled to first apply payments to previous debts of the client. If costs and interest have already accrued as a result of the delay, Monteurpower GmbH is entitled to first apply the payment to the costs, then to the interest and finally to the principal claim. If the client specifies other redemption terms, Monteurpower GmbH is entitled to reject the payment.
6. If the agreed payment terms are deviated from without justification, Monteurpower GmbH may also, independently of § 4(2), at any time and at its discretion demand cash payment, advance payment or a security payment for continued provision of the service. All outstanding claims, including those for which Monteurpower GmbH has accepted a bill of exchange or for which instalment payments have been agreed, become due immediately.
7. The payment terms granted are in respect of the credit limit assigned by Monteurpower GmbH for each individual order. In determining the current credit limit, outstanding payment obligations from existing or previous contracts will also be taken into consideration. If the respective credit limit as currently determined is exceeded, Monteurpower GmbH reserves the right to demand the remaining value of the order as an advance payment. In the case of a subsequent change in the credit rating of the client or if the client exceeds the credit limit, Monteurpower GmbH is likewise entitled to exercise the rights specified in § 4(2) and (6).
8. If the client continues to default on settlement of the agreed sum in whole or in part, despite additional demand for payment, Monteurpower GmbH may terminate the contractual relationship without notice.
§ 5 Liability
1. The liability of Monteurpower GmbH for damages, regardless of the legal basis, in particular for impossibility, default, breach of contract, breach of duties in negotiating the contract and liability in tort, to the extent that it is based on fault, is limited in accordance with this section.
2. Monteurpower GmbH is not liable
a) in the event of simple negligence of its bodies, authorised representatives, employees or other servants or agents;
b) in the event of gross negligence of non-management employees or other servants or agents, unless it involves a breach of material contractual duties.
3. Where Monteurpower GmbH is substantially liable in accordance with subsection 2, this liability is limited to damages which were foreseeable at the time the contract was entered into as a possible consequence of a breach of contract or taking into account the circumstances which were known to it or which ought to have been known to it or ought to have been foreseen by it by applying due commercial care and attention.
4. In the event of liability for simple negligence, the obligation of Monteurpower GmbH to provide compensation for material damages or personal injuries (in accordance with the sum currently covered by the policy of third-party liability insurance held by Monteurpower GmbH) is limited, even if it involves a breach of material contractual duties.
5. The foregoing exclusions and restrictions of liability apply to the same extent in respect of the bodies, authorised representatives, employees and other servants and agents of Monteurpower GmbH.
6. Where Monteurpower GmbH gives technical information or provides advice and this information or advice does not form part of the contractually agreed services to be provided by it, same is done free of charge and with the exclusion of any liability.
7. The limitations of this section do not apply to the liability of Monteurpower GmbH for deliberate acts, personal or fatal injuries or under product liability law.
§ 6 Termination
1. The contract may be terminated by either party for important reasons only. An important reason includes in particular if facts have emerged based on which the terminating party cannot, in light of all the circumstances of the individual case and balancing the interests of the parties to the contract, be reasonably expected to continue the contract. If the client terminates the contract in the absence of an important reason or in the event that Monteurpower GmbH terminates for an important reason for which the client is responsible, Monteurpower GmbH reserves the right to claim the full amount of remuneration for the order either outstanding or expected, less the costs saved. The parties to the contract are entitled to produce evidence of higher or lower damages.
2. The notice of termination must be in writing.
§ 7 Cancellation policy, rescission
1. The client is entitled to withdraw from the order free of charge up to two weeks before the start of the project. If the rescission takes place up to seven days before the start of the project, the client must pay 50% of the agreed remuneration to Monteurpower GmbH. If the rescission takes place less than two days before the start of the project, the client must pay the entire agreed fee to Monteurpower GmbH, less any saved costs.
2. The client is entitled to produce evidence that in individual cases a lower amount for refund should apply.
§ 8 Exclusion of set-off
The client is only entitled to set-off claims if its counterclaims are undisputed or the subject of a binding legal order. The client is only entitled to exercise a right of retention insofar as its counterclaim is based on the same contractual relationship.
§ 9 Non-disclosure, non-compete
1. The client will treat in strict confidence all trade secrets, documentation, experience and knowledge of or in respect of Monteurpower GmbH and its partners and customers and use them solely to perform the service contractually due to its customers. This obligation continues for two years after the end of this contract.
2. The client must maintain the strictest confidence in respect of all information about Monteurpower GmbH which is not contained in official promotional material, announcements or in the media of Monteurpower GmbH.
3. The client undertakes to store safely and prevent access by third parties to all documentation and material as well as data storage media provided to it by Monteurpower GmbH.
4. Upon completion of the contractual services and/or after the end of the individual order, the client will return all documentation created and material and information handed over in the course of and in connection with the individual order, as well as copies thereof, immediately and without demand to Monteurpower GmbH. There is no right of retention in this regard.
5. The client undertakes after the end of the contract not to conduct for a period of two years any direct or indirect business with the service providers and cooperation partners of Monteurpower GmbH who had previously been engaged by Monteurpower GmbH in the course of the contract entered into between the parties, and to whom the client was introduced by Monteurpower GmbH. This client protection clause also applies to all work in preparation of a business transaction and in cases where the client engages the services of such a service provider or cooperation partner with the aid of a third party or by some other indirect or indirect means. This provision does not apply in respect of service providers which the client availed of before its business relationship with Monteurpower GmbH.
6. In the event of a breach of the foregoing obligation, the client shall pay Monteurpower GmbH a contractual penalty in the sum of 45% of the volume of the orders agreed with such service provider or cooperation partner.
7. To this end the client grants Monteurpower GmbH the right, where there is a justifiable suspicion, to have the client's books and accounts inspected by a lawyer, auditor or tax consultant.
§ 10 Newsletter, data protection
1. The client agrees that Monteurpower GmbH is entitled to process and use its inventory data, as long as this is necessary for advising the client, for promotional use or market research for its own purposes or to tailor its services to customer needs. The client agrees that its details may be used for marketing purposes and that Monteurpower GmbH (or others) may contact it with interesting offers by e-mail. By placing the order, the client consents in particular to receiving information from www.monteurpower.de at irregular intervals at no cost. The client is of course entitled to refuse the information without stating reasons at any time, including in advance, by sending an e-mail via www.monteurpower.de.
2. The client can object to the use of its data at any time. Monteurpower GmbH will upon request provide the client at any time with information on the data stored in respect of it, in full and free of charge.
3. The client acknowledges that Monteurpower GmbH stores data arising from the contractual relationship in accordance with § 28 of the German Data Protection Act for the purposes of data processing and reserves the right to transmit the data to third parties to the extent that this is necessary for the fulfilment of the contract.
§ 11 Final provisions; legal venue
1. The underlying contract including these general terms and conditions and the entire legal relationship between the parties is subject to the law of the Federal Republic of Germany excluding the United Nations Convention on the International Sale of Goods (CISG).
2. The legal venue for any disputes arising from the commercial relationship between Monteurpower GmbH and the client is - to the extent legally permissible - either Oberhausen (Local Court of Oberhausen) or the client's place of business, at the discretion of Monteurpower GmbH. For claims against Monteurpower GmbH, the exclusive legal venue is Oberhausen (Local Court of Oberhausen / Regional Court of Duisburg). Mandatory statutory regulations on exclusive legal venues are not affected by this provision.
3. All agreements entered into between the parties for the purpose of implementing this contract have also been set down in the contract in writing.
4. Should individual provisions of this contract with the client, including these general terms and conditions, be or become invalid or contain a gap, this does not affect the remainder of the provisions.