You are secured by the VACOM GTCs.
General Terms and Conditions
1. General Provisions and Scope
1.1 These General Terms and Conditions (hereinafter referred to as "GTC" or “Agreement”) apply to all Delivery and Service Contracts concluded between the customer (hereinafter “Customer”) and
VACOM USA LP
2900 Horseshoe Dr. S #1300
Naples, FL 34104
1.2 All Delivery and Service Contracts are concluded exclusively with commercial Customers for industrial goods and services and are not for consumer products or services.
1.3 Any Delivery and Service Contracts between VACOM and its Customers shall be primarily governed by the individual written agreements made with the Customer. To the extent that individual agreements have been entered into, these General Terms and Conditions shall serve to supplement such individual agreement to the extent that it is not contradictory and shall be made part of any such agreement, whether explicitly incorporated by reference or not. To the extent that no individual agreement has been entered into with the Customer, these Terms shall comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral and form the exclusive basis for all Delivery and Service Contracts concluded with VACOM. These GTC shall remain in force for any future Delivery and Service contracts with the Customers, even if they are not expressly agreed upon again.
1.4 The basis for all Delivery and Service Contracts between VACOM and its Customers is the English version of these GTC. Versions of this GTC in other languages may only be used for informational purposes but shall not be legally binding if there is any inconsistency between the English version and such translation.
1.5 Depending on the transaction, the following Supplementary Terms and Conditions of these GTC shall be included in the GTC between VACOM and its Customers and shall be incorporated by reference hereto:
- Supplementary Terms and Conditions for Online Store Orders
- Supplementary Terms and Conditions for Cleaning Services
- Supplementary Terms and Conditions for Repairs
2. Conclusion of Contract
2.1 The offers made by VACOM are subject to change and non-binding. A contract shall only be deemed concluded, if VACOM has confirmed the Customer's binding order in writing or has delivered the goods and/or the services.
2.2 Customer is obliged to check the order confirmation from VACOM and shall contact VACOM immediately should any discrepancies be detected. This applies in particular to project contracts laying down price calculations and performance specifications made by VACOM.
3. Condition of Goods and Services
3.1 Particulars appearing in catalogue, folders etc. as well as any oral or written statements concerning the condition and properties like technical details shall only be binding, if VACOM makes express reference to them in the confirmation of the order. Data which appears in technical documents shall likewise only then be binding, if VACOM makes express reference to them in the confirmation of the order.
3.2 VACOM reserves the right up to delivery to carry out standard technical changes, in
particular improvements, if as a result only minor changes to the condition and properties arise and the Customer is not unreasonably affected, however upon prior agreement with the Customer.
4.1 All stated prices are for the product only and does not include packaging, transportation, and applicable taxes. Any additional costs (e.g. freight, insurance, permits for export, transit and import, or any other permits and certifications) shall be borne by the Customer. Likewise, the customer shall bear any kinds of taxes, levies, fees, customs duties etc. imposed in connection with the contract and shall reimburse VACOM for any such cost borne by VACOM on behalf of the Customer.
4.2 VACOM reserves the right to make appropriate price adjustments if:
• Shipment is delayed at the request of, or caused by the Customer; or
• the nature or scope of the agreed deliveries or services have changed; or
• the materials or scope of work have changed because documents supplied by the Customer were incorrect or incomplete.
4.3 The minimum order value for any orders is $250 (net of taxes, costs and feed). If the minimum order value is not reached, VACOM shall be entitled to charge a handling fee of $75.
5. Terms of Payment and Default of Payment
5.1 Payments shall be made in accordance with the terms of the Order Confirmation or invoice.
5.2 In case of bank transfers, the timeliness of payments shall be determined by the time VACOM's account is credited.
5.3 Customer shall pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Customer shall reimburse VACOM for all costs incurred in collecting any late payments, including, without limitation, attorneys' fees, court fees, costs and expenses at all levels, including appeals. In addition to all other remedies available under these GTC or at law (which VACOM does not waive by the exercise of any rights hereunder), VACOM shall be entitled to suspend the delivery of any Goods or performance of any Services [and stop Goods in transit] if Customer fails to pay any amounts when due hereunder.
6.1 All non-public, confidential or proprietary information of VACOM, including but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates, disclosed by VACOM to Customer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated, or otherwise identified as "confidential" in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied nor published in any way whatsoever or uses for other purposes (namely for the reproduction of machines, plants and components as well as parts thereof, particularly by means of reverse engineering), unless authorized in advance by VACOM in writing. Upon VACOM's request, Customer shall promptly return all documents and other materials received from VACOM. VACOM shall be entitled to injunctive relief for any violation of this Section.
6.2 VACOM and the Customer agree to impose the same obligations to safeguard confidential information on all necessary subcontractors and other third parties by having them sign non-disclosure agreements.
6.3 VACOM and the Customer agree that the existence of a business relationship between them (pre-contractual negotiations, conclusion of contract, etc.) also constitutes Confidential Information subject to this section.
6.4 This Section does not apply to information that is:
(a) in the public domain; (b) known to Customer at the time of disclosure; or (c) rightfully obtained by Customer on a non-confidential basis from a third party
6.5 If VACOM and the Customer have already signed a separate non-disclosure agreement and remain subject to the conditions of such a valid non-disclosure agreement at the time of the conclusion of the Delivery and/or Service Contract subject to these GTC, the conditions of the separately concluded non-disclosure agreement shall govern but will be supplemented by this section of these GTC, to the extent they are not inconsistent with the separate non-disclosure agreement
7. Reservation of Ownership
7.1 As collateral security for the payment of the purchase price of the goods, Customer hereby grants to VACOM a lien on and security interest (hereinafter referred to as “Security Interest”) in and to all of the right, title, and interest of Customer in, to and under the goods, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. Goods subject to such security interest shall are hereinafter called “Reserved Goods”.
7.2 The Security Interest shall also apply to all subsequently acquired claims by VACOM against the Customer in connection with the Reserved Goods, for example due to repairs, spare parts deliveries, and other services.
7.3 The Customer shall store the Reserved Goods on behalf of VACOM free of charge. The Customer is also required to keep the Reserved Goods in a good working condition for the duration of the Security Interest and to have all necessary maintenance work and repairs carried out, as appropriate, at Customer’s own expense.
7.4 Until the settlement of all claims of VACOM (including payment of all outstanding invoices), the Reserved Goods may not be resold, leased, lent, given away or handed over to third parties. Assignments as security and pledging of the Reserved Goods shall be prohibited without the written consent of VACOM. If a third party acquires possession of the Reserved Goods, in particular by seizure or initiation of insolvency proceedings, the Customer shall immediately inform the third party of VACOM's Security Interest of the Reserved Goods and also inform VACOM in order to enable VACOM to assert VACOM's ownership and Security Interest rights.
7.5 If the Reserved Goods have been combined and mixed with other goods, VACOM shall acquire co-ownership of the new item in proportion of the invoice value of the Reserved Goods to the other processed items at the time of processing.
7.6 For the duration of the Security Interest, the Customer shall only be entitled to possess and use the Reserved Goods, provided that the Customer fulfils all obligations specified in the Delivery Contract and these General Terms and Conditions, and is not in default of payment.
7.7 If the Customer is in default of payment or fails to fulfil all obligations arising from the Security Interest, VACOM shall have the right to withdraw from the contract. VACOM shall be entitled to demand the return of the Reserved Goods from the Customer and to dispose of them by discretionary sale after having set a reasonable deadline for Customer to cure.
7.8 The Customer shall bear all costs arising in connection with repossessing and disposition of the Reserved Goods.
7.9 VACOM agrees to release the security interest in the Reserved Goods to the extent that such Security Interest exceeds 110% of the value of the outstanding claim.
8. Delivery Period
8.1 The delivery timeframe agreed to between the parties for the delivery shall be the “Delivery Period.” The Delivery Period shall commence at (1) issuance of the Order Confirmation, (2) providing by Customer of all of the necessary documents, permits, and/or releases to be procured by the Customer, or (3) receipt of an agreed down payment, whichever occurs last. The Delivery Period shall be deemed to have been complied with, if the Notification of Readiness for shipment has been sent to the Customer by the end of the Delivery Period.
8.2 Compliance with the Delivery Period is subject to the Customer fulfilling all contractual obligations. In particular, if advance payment or a deposit has been agreed to, the Delivery Period shall not begin until payment has been irrevocably credited to VACOM.
8.3 The Delivery Period shall be extended by a reasonable time period for delays resulting from circumstances beyond the control of VACOM, irrespective of whether these delays occurred due to an act or omission at VACOM, the Customer or a third party. As soon as the cause for the delay has been remedied, a new delivery date shall be scheduled in writing.
8.4 If shipment of goods is delayed at the Customer’s request, the Customer will be charged a storage fee for each month or part of a month that the goods are stored by VACOM. The storage fee shall be calculated as 0.5% of the list price of such undelivered goods for each month, or part of a month, beginning thirty days after notification of readiness for shipment. However, VACOM shall not be required to indefinitely store the Customer’s wares and shall instead be entitled to dispose of the delivery items at its own discretion after having set a reasonable deadline for Customer to take possession of the goods and after such deadline has expired without the product having shipped, for any reason. Customer shall remain liable for all invoiced amounts, but shall be credited with any proceeds from such disposition.
9. Transfer of Risk and Inspection
9.1 The risk is deemed to pass to the Customer once the delivery item has been transferred to the shipping company, even if only partial orders are shipped or VACOM has agreed to provide other services or assume costs, including but not limited to shipping costs or delivery and installation services.
9.2 Customer shall inspect the Goods upon receipt ("Inspection Period"). Customer will be deemed to have accepted the Goods unless it notifies VACOM in writing of any Nonconforming Goods within 24 hours of receipt of Goods and furnishes such written evidence or other documentation as reasonably required by VACOM. "Nonconforming Goods" means only the following: (i) product shipped is different than identified in Customer's purchase order; or (ii) product's label or packaging incorrectly identifies its contents. The Customer may not refuse acceptance due to an insignificant defect or deviation.
9.3 If Customer timely notifies VACOM of any Nonconforming Goods, VACOM shall, in its sole discretion, (i) replace such Nonconforming Goods with conforming Goods, or (ii) credit or refund the Price for such Nonconforming Goods, together with any reasonable shipping and handling expenses incurred by Customer in connection therewith. Customer shall ship, at its expense and risk of loss, the Nonconforming Goods to VACOM's facility located in Naples, Florida. If VACOM exercises its option to replace Nonconforming Goods, VACOM shall, after receiving Customer's shipment of Nonconforming Goods, ship to Customer, at Customer's expense and risk of loss, the replaced Goods.
9.4 If delivery, inspection or acceptance is delayed or does not take place due to circumstances beyond VACOM’s control, VACOM may insure the goods at Customer’s expense.
9.5 Partial deliveries are permissible to the extent reasonable.
9.6 VACOM shall inspect the goods and services before shipment, to the extent as is customary industry practice. If the Customer requires additional tests or inspections, these shall be agreed upon separately and paid for by the Customer.
Customer shall comply with all export and import laws of all countries involved in the sale of the Goods under this Agreement or any resale of the Goods by Customer. Customer assumes all responsibility for shipments of Goods requiring any government import clearance. VACOM may terminate this Agreement if any governmental authority imposes antidumping or countervailing duties or any other duties or penalties on the Goods and shall not be required to export or re-export goods to places or end users that are subject to export restrictions. In such circumstances, and at the discretion of VACOM, VACOM may allow the Customer to either collect the goods at a place of VACOM’s choosing or allow Customer to provide VACOM with an alternative delivery address.
VACOM shall grant a limited warranty for material defects of the delivered goods as follows:
11.1 VACOM warrants to Customer that for a period of twelve months from the date of shipment of the Goods ("Warranty Period"), that such Goods will materially conform to the specifications set forth between the parties and will be free from material defects in material and workmanship.
11.2 VACOM warrants to Customer that it shall perform the Services using personnel of required skill, experience, and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and shall devote adequate resources to meet its obligations under this Agreement.
11.3 Except for the warranties set forth in sections 11.1 and 11.2, VACOM makes no warranty whatsoever with respect to the goods or services, including any (a) warranty of merchantability; or (b) warranty of fitness for a particular purpose; or (c) warranty of title; or (d) warranty against infringement of intellectual property rights of a third party; whether express or implied by law, course of dealing, course of performance, usage of trade, or otherwise.
11.4 VACOM shall not be liable for a breach of the warranties unless: (i) Customer gives written notice of the defective Goods or Services, as the case may be, reasonably described, to VACOM within seven days of the time when Customer discovers or ought to have discovered the defect; (ii) if applicable, VACOM is given a reasonable opportunity after receiving the notice of breach of the warranty set forth in Section 11.1 to examine such Goods and Customer (if requested to do so by VACOM) returns such Goods to VACOM's place of business at VACOM's cost for the examination to take place there; and (iii) VACOM reasonably verifies Customer's claim that the Goods or Services are defective.
11.5 With respect to any defective Goods, during the Warranty Period VACOM shall, in its sole discretion, either: (i) repair or replace such Goods (or the defective part) or (ii) credit or refund the price of such Goods at the pro rata contract rate provided that, if VACOM so requests, Customer shall, at VACOM's expense, return such Goods to VACOM.
11.6 VACOM shall not be liable for a breach of the warranty set forth in Section 11.1 or Section 11.2 if: (i) Customer makes any further use of such Goods after giving notice under Section 11.4; (ii) the defect arises because Customer failed to follow VACOM's oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods, subsequent modification, incorrect handling, maintenance and repair, use in unsuitable operating conditions, damage due to chemical, electrochemical or electrical influences and extreme temperature and weather; or (iii) Customer alters or repairs such Goods without the prior written consent of VACOM
11.7 Any warranty related to cleaning services shall be voided once the primary packaging is opened.
11.8 VACOM shall not be liable for defects arising from objects and/or materials provided by the Customer or from a design defined or specified by the Customer. VACOM shall only be liable for damages for items provided to VACOM, by the Customer, for cleaning services, if the damage or defect can be conclusively proven to have been caused intentionally or by gross negligence of VACOM during processing and treatment by VACOM. The Customer shall be required to provide conclusive proof that the damage or defect was caused by VACOM.
12.1 In no event shall VACOM be liable to customer or any third party for any loss of use, revenue or profit or loss of data or diminution in value, or for any consequential, indirect, incidental, special, exemplary, or punitive damages whether arising out of breach of contract, tort (including negligence), or otherwise, regardless of whether such damages were foreseeable and whether or not VACOM has been advised of the possibility of such damages, and notwithstanding the failure of any agreed or other remedy of its essential purpose
12.2 In no event shall VACOM's aggregate liability arising out of or related to this agreement, whether arising out of or related to breach of contract, tort (including negligence), or otherwise, exceed the total of the amounts paid to VACOM for the goods and services sold hereunder or $ 10,000, whichever is less.
12.3 The limitation of liability set forth in 12.2 shall not apply to (i) liability resulting from VACOM's gross negligence or willful misconduct and (ii) death or bodily injury resulting from VACOM’s acts or omissions.
13. Software Usage
13.1 If software is included in the scope of delivery, the Customer is granted a non-exclusive right to use the software supplied, including its documentation. It is provided for use on the delivery item intended for this purpose. Use of the software on more than one system is prohibited.
13.2 The Customer may only copy, revise, translate or convert the software from the object code to the source code to the extent permitted by law. The Customer undertakes not to remove manufacturer's details – in particular, copyright notices – or to change them without VACOM’s prior express consent. All other rights to the software and the documentation, including the copies, shall remain with VACOM or the software supplier. The granting of sub-licenses is not permitted.
14. Right of Return
Customer acknowledges and agrees that the remedies set forth in Section 9.3 are Customer's exclusive remedies for the delivery of Nonconforming Goods. Except as provided under Section 9.3, all sales of Goods to Customer are made on a one-way basis and Customer has no right to return Goods purchased under this Agreement to VACOM.
15.1 VACOM's services include cleaning services, measuring services and consultancy services.
15.2 The results achieved by VACOM, within the scope of services rendered, are recorded in internal databases. This data serves as a basis for analysis and may be published by VACOM in anonymized form.
15.3 VACOM shall not be liable for damage to items provided to VACOM for the performance of services on such items unless the Customer can conclusively establish that the damage has been caused by VACOM intentionally or due to gross negligence.
15.4 If the object of the contract is a consultancy service to be provided by VACOM, the Customer expressly acknowledges that VACOM is not be required to bring about any specific outcome.
16. Applicable Law, Place of Jurisdiction, Contract Language
16.1 All matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws of the State of Florida, County of Collier, without giving effect to any choice or conflict of law provision or rule (whether of the State of Florida or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Florida
16.2 Any legal suit, action, or proceeding arising out of or relating to this Agreement shall be instituted in the U.S. District Court, Middle District of Florida, in Fort Myers, Florida or the courts of the State of Florida located in the City of Naples, County of Collier, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
16.3 The contract language is English.
17. Final Provisions
17.1 If any term or provision of this GTC is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this GTC or invalidate or render unenforceable such term or provision in any other jurisdiction..
17.2 Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement including, but not limited to, the following provisions:Compliance with Laws, Confidential Information, Governing Law, Submission to Jurisdiction, and Survival.
17.3 All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a "Notice") shall be in writing and addressed to the parties at the addresses set forth on the face of the Order Confirmation or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.
17.4 No waiver by VACOM of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by VACOM. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
17.5 The Customer shall generally not be entitled to any right of set-off unless the Customer’s claimed offset has been legally adjudicated or is uncontested or acknowledged, in writing, by VACOM. The Customer shall not be entitled to withhold payments due to any counterclaims or claims for offset that are disputed by VACOM.
17.6 VACOM reserves the property rights and copyrights to all documents, in particular data carriers, documentation, illustrations, drawings, calculations, which have been made available to the Customer; these may not be used for purposes other than those stipulated in the contract and may not be made accessible to third parties and shall be returned to VACOM immediately, postage paid, if the contract for delivery and/or performance is terminated or if the contractual purpose of use has been fulfilled. This shall apply in particular to such documents and information that are marked "confidential". VACOM shall be entitled to demand the return of documents at any time if confidentiality is not ensured.
Supplementary Terms and Conditions for Online Shop Orders
1. General Provisions and Scope
These terms and conditions (as supplementary or substitute terms and conditions) serve the purpose of adapting the General Terms and Conditions (“GTC” which are attached hereto and incorporated by reference) to orders made via the online shop.
2. Conclusion of Contract
2.1 The presentation of goods in the online shop does not constitute a binding offer for the conclusion of a delivery contract. Rather, it is a non-binding invitation to the Customer to make an offer to order goods in the online shop.
2.2 By clicking the button ["Complete order"], the Customer makes a binding offer to purchase. After receipt of the purchase offer, the Customer will receive an automatically generated e-mail confirming that VACOM has received the order (confirmation of receipt). This confirmation of receipt does not constitute an acceptance of the Customer's offer to buy. The confirmation of receipt shall not constitute a delivery contract.
2.3 A delivery contract shall only be concluded once VACOM expressly declares acceptance of the purchase offer by sending of an “Order Confirmation” or, in the alternative, when the goods are shipped to the Customer – without prior express declaration of acceptance.
2.4 The Customer agrees that the receipts and documents for the online order, such as Order Confirmations and invoices, will only be sent by e-mail to the Customer’s e-mail address as specified in the online shop.
3. Minimum Order Value
There is no minimum order value for orders made via the VACOM Online Shop.
Supplementary Terms and Conditions for Cleaning Services
These terms and conditions (as supplementary or substitute terms and conditions) serve the purpose of adapting the General Terms and Conditions (“GTC” which are attached hereto and incorporated by reference) to orders made for Cleaning Services. In order to ensure the offered cleanliness characteristics after the cleaning process and to meet the agreed delivery times, the component to be cleaned, which is delivered by the Customer, must meet the following requirements:
1. The order must be received by VACOM at least three days before delivery of the component.
2. The following technical parameters of the component are provided, no later than at the time the order is placed:
• Material number
• Technical drawing with external dimensions
• Surface in cm²
• Maximum temperature (if no maximum temperature is specified, aluminum is thermally stressed up to 120 °C and stainless steel up to 200 °C)
3. The component has a barcode label at the time of delivery.
4. The component is delivered in suitable transport packaging to protect the form and functionality as well as the pre-cleaning condition of the component. In case of reusable transport packaging, it must be taken into account that the cleaned components that are specially packaged to comply with cleanroom conditions use up more space (prior consultation may be necessary).
5. The component is delivered in a condition prepared for ultra-fine cleaning, i.e., in detail:
5.1 Components are free of
• heavy metals
• silicones and adhesives
• firmly adhering drain tracks of liquids, residues, etc.
• organic sulfur and phosphorus compounds
• stains, discolorations, tarnishes
• chips and burrs
5.2 Components are free of oil and grease, i.e.
• outgassing rate after 30 min is less than or equal to
m / z 45 – 100: 1E-8 mbar ∙ l / s / cm²
m / z 101 – 200: 7.5E-10 mbar ∙ l / s / cm²
• or organic residual dirt less than 10 mcg / cm²
5.3 Encapsulated components are leak-tight
• up to and including PC2 at least 1E-7 mbar ∙ l / s for air
• from PC2+ at least 1E-09 mbar ∙ l / s for air. In the event of non-compliance with points 5.1 - 5.3, VACOM reserves the right to return the component to the Customer or to have the necessary state of preparations produced by VACOM at the Customer’s expense. The resulting delays will extend the Delivery Period.
Supplementary Terms and Conditions for Repairs
These terms and conditions (as supplementary or substitute terms and conditions) serve the purpose of adapting the General Terms and Conditions (“GTC” which are attached hereto and incorporated by reference) to orders made for Repair Services.
1. General Provisions and Scope
1.1 These Terms and Conditions shall apply exclusively to items delivered by VACOM (hereinafter "item to be repaired").
1.2 These Terms and Conditions (as supplementary or substitute terms and conditions) serve to adapt the conditions of the General Terms and Conditions to repair services.
2. Conclusion of Contract
2.1 At the time of contract conclusion, the Customer shall inform VACOM in writing of all circumstances relevant to the repair, and in particular of any contamination. Irrespective of whether repair services are carried out in or outside VACOM's premises, the Customer shall fill in the declaration of contamination provided by VACOM. If the item to be repaired is to be sent to VACOM, the declaration of contamination shall be attached to the outside of the package. If the declaration of contamination is not sent with the goods, the item shall be returned at Customer’s expense. The Customer shall be liable for the accuracy and completeness of the information given in the declaration of contamination, as well as for all damages caused by an incorrect and/or incomplete declaration of contamination. In case of certain types of contamination, VACOM reserves the right to refuse acceptance of the item to be repaired or to charge the Customer additional costs for decontamination.
3. Prices, Estimate
3.1 To the extent possible, the Customer will be given an estimate of the expected repair costs at the time of contract formation.
3.2 If the repair cannot be carried out at the stated price or if VACOM considers it necessary to carry out additional work during the repair process, the Customer’s consent will be obtained if the agreed price will be exceeded by more than 15%.
3.3 If the Customer wishes to have a cost estimate with binding price estimates before the repair is carried out, this must be expressly requested by the Customer. Unless otherwise agreed, such a cost estimate shall only be binding if it is submitted in writing and expressly declared as binding.
3.4 The services rendered in order to submit a cost estimate as well as any further expenses that are incurred and can be substantiated (troubleshooting time equals working time) shall be invoiced to the Customer if the repair cannot be carried out for reasons beyond VACOM’s control, in particular if the objected error was not reproducible during inspection, if spare parts cannot be procured, if the Customer culpably missed the agreed date or if the contract was terminated during its execution.
3.5 VACOM shall, at its sole discretion, be entitled to request an appropriate fee deposit upon contract formation.
3.6 When calculating the cost of the repair, the prices for parts, material and special services, as well as the prices for services, travel and transport costs will be itemized on the invoice.
3.7 Any adjustment of the invoice on the part of VACOM and any objection on the part of the Customer must be made in writing no later than two weeks after receipt of the invoice.
4. Reservation of Ownership, Lien
4.1 VACOM retains a lien on and security interest in and to all accessories, spare parts and replacement units used, until all payments arising from the repair contract have been received. Further agreements to supply collateral may be made.
4.2 If VACOM has any claims against Customer, resulting from the repair contract, VACOM is entitled to a lien on the Customer's item to be repaired that has come into VACOM’s possession based on said repair contract. The lien may also be asserted based on claims from previously provided work, spare parts deliveries and other services, as far as they are related to the item to be repaired. For other claims, the lien shall only apply if these claims are undisputed or legally binding.
5. Repair Period
5.1 Repair timeframes are estimates based on the best available information and thus are not binding unless otherwise specifically agreed upon.
5.2 Upon request, the Customer may request a binding Repair Period, which must be specifically declared as binding, once the scope of the work has been precisely determined. The binding Repair Period will be deemed to have been complied with if, by the time it expires, the item to be repaired is ready for acceptance by the Customer or, in the case of a contractually agreed test, if the item to be repaired is ready for testing.
5.3 If change orders or supplemental orders are placed or if additional repair work is necessary due to unforeseen circumstances, the agreed Repair Period shall be extended accordingly.
5.4 If the repair is delayed due to circumstances beyond VACOM’s control, irrespective of whether they occur at VACOM, at the Customer or at a third party, the repair period shall be extended accordingly.
6.1 The Customer shall be obliged to accept the repair work upon being notified of its completion and once any contractually agreed testing of the object of repair has taken place.
6.2 If the repair work proves not to be in accordance with the contract, VACOM shall be obliged to remedy the defect. However, this shall not apply if the defect is minor or is due to circumstances attributable to the Customer. If the defect is not substantial, the Customer may not refuse acceptance.
6.3 If acceptance by Customer is delayed through no fault of VACOM, then acceptance shall be deemed to have occurred, upon expiration of a period of two weeks, after the notification of Customer of completion of repair by VACOM.
6.4 VACOM's liability for defects shall cease upon acceptance by Customer, unless the Customer has reserved the right to assert a specific defect and this was agreed to by VACOM, in writing, prior to commencement of repairs.
7. Warranty Claims and Statute of Limitations
7.1 After acceptance of the repair work, VACOM shall be liable for repair defects in such a way that it must remedy the defects only to the extent outlined in and consistent with Section 11 of the GTC which are incorporated by reference. The Customer shall immediately notify VACOM in writing of any defect detected, also in accordance with Section 11 of the GTC.
7.2 VACOM shall not be held liable if the defect is minor or is based on circumstances attributable to the Customer. This applies in particular to parts provided by the Customer.
7.3 In accordance with Section 11 of the GTC, in the event of any modifications or repair work carried out improperly by the Customer or third parties without the prior consent of VACOM, VACOM shall not be liable for any consequences arising therefrom.
7.4 In emergency situations, where operational safety is at stake and in order to mitigate and prevent disproportionate damage, the Customer shall have the right to remedy a defect or have it remedied by third parties and to demand that VACOM reimburse the Customer for the necessary costs, but only if such defect is conclusively proven to be a valid Warranty Claim and provided that VACOM was immediately informed of the circumstances.
7.5 In the case of a valid Warranty claim, VACOM will bear the costs necessary to remedy the defect as long as this does not result in a disproportionate burden for VACOM.
7.6 Any and all claims for defects by the Customer are subject to a limitation period of 12 months after acceptance of the repairs and subject to the GTC.
8.1 Subject to the Terms of the GTC, if the item to be repaired is damaged by VACOM, VACOM may, at its own discretion and at its own expense, repair the item, deliver new parts or provide a replacement. The Customer shall have the burden to conclusively prove that the damage was caused by VACOM and that it meets the other terms for liability under the GTC.
9. Customer’s Cooperation and Technical Assistance for Repairs Outside VACOM's Factory
9.1 The Customer shall support VACOM's repair personnel in carrying out the repair at Customer’s expense.
9.2 The Customer must take any special measures necessary to protect persons and property at the repair site. The Customer also must inform the person in charge of repairs about existing special safety regulations, as far as they are relevant for the repair personnel.
9.3 The Customer shall provide technical assistance at Customer’s expense. In particular, Customer shall:
• provide sufficient and suitable supporting staff for the time required for the repair; ensure that the supporting staff follow the instructions of VACOM's repair manager. VACOM shall not assume any liability for the supporting staff;
• provide tools (if necessary);
• provide heating, lighting, power, water, including the required connections;
• provide the required dry and lockable rooms for the storage of the repair personnel’s tools;
• protect the repair site and materials from harmful influences of any kind; clean the repair site;
• provide suitable, theft-proof lounges and work rooms (with heating, lighting, washing facilities, sanitary facilities) and first aid for the repair personnel; and
• provide materials and perform all other actions necessary to install the item to be repaired and to carry out a contractually agreed test.
9.4 The Customer's technical assistance must guarantee that the repair can be started immediately upon arrival of VACOM's repair personnel and can be carried out without delay up to Customer's final inspection and acceptance. If special plans or instructions are required by VACOM, VACOM shall make them available to the Customer in due time.
9.5 In addition to any other remedies at law or in equity, if the Customer fails to fulfil all obligations, VACOM shall be entitled, but not obliged, after setting a deadline, to carry out the Customer’s duties on Customer’s behalf and at Customer’s expense.
9.6 For repair work performed outside VACOM's factory, if any equipment or tools provided by VACOM are damaged on the repair site or lost through no fault of VACOM’s, the Customer shall compensate VACOM for these damages. This shall not apply to damages that are due to normal wear and tear.
10. Transport and Insurance in Case of Repair at VACOM's Factory
10.1 Unless otherwise agreed to, in writing, the Customer shall deliver the item to be repaired to VACOM at Customer’s expense and likewise collect it from VACOM, upon completion of the repair.
10.2 The Customer shall assume and insure against transport risk.
10.3 VACOM provides no insurance coverage for items delivered to VACOM for repairs, during the repair on the VACOM premises. The Customer retains risk of loss and shall ensure that the existing insurance cover for the item to be repaired is maintained, e.g. with regard to insurance against fire, flood, storm and breakdown of machinery. Only at the express request and at the expense of the Customer can insurance coverage be obtained for these risks by VACOM.
10.4 If the Customer refuses acceptance, VACOM may charge warehousing fees for storage of the item being refused by Customer. The item to be repaired may be placed in off-site storage, at VACOM's discretion. The costs and risk of storage shall be exclusively borne by the Customer.