1. Scope 适用范围
1.1 These General Service Conditions apply for contracts concluded between the customer and LPKF that cover repetitive test and maintenance work to machines and equipment of LPKF (Objects of Contract) or single tests and other maintenance orders including repair and modifications to Objects of Contract (Service Contracts). These General Service Conditions do not apply in the case of a sale or purchase of products, for which the respective manufacturing and delivery conditions respectively the purchase condition of LPKF apply.
1.2 These General Service Conditions are valid exclusively for the Service Contracts in the meaning of article 1.1, that LPKF executes for companies, legal persons or other organizations in the definition of PRC Contract Law as well as other applicable laws and regulations.
1.3 The agreements determined in the respective Service Contracts take precedence over these General Service Conditions.
1.4 All services and offers are performed exclusively based on these General Service Conditions. They apply also to all future services and offers, even if they are not agreed upon separately. Business Terms and Conditions, especially the customer purchase condition that contradict these General Service Conditions are only valid, if and as far as LPKF has accepted these expressly in writing.
2. Contract conclusion 合同订立
A Service Contract is concluded bindingly with its signature, with the written order acceptance by LPKF or with the performance of the service.
3. Service content and performance 服务内容和执行
3.1 The scope of the service is derived from the respective Service Contract. If not agreed upon otherwise expressively, the performance does not include any commitment regarding response time, machine availability, reachability as well as for replacement availability. If such services are agreed upon, then these are valid only in the territory of the PRC (location of the Object of Contract)
3.2 LPKF performs the contractual services by using employees qualified in the respective matter. As far as special abilities, expert knowledge or qualifications are required, the parties will specify such down in the respective Service Contract in a separately.
3.3 LPKF provides the tools required for the performance. LPKF documents the services performed in an appropriate form, observing the possible legal and other provisions.
3.4 In the course of performance of the services LPKF observes the generally accepted test methods as well as the applicable legal and other provisions including the applicable professional association´s regulations. The remuneration established in Service Contracts can be adjusted by LPKF in fair judgment based on market price. In adjusting the remuneration LPKF considers especially the expenses for modified requirements to the service extent, for personnel and/or tools used or new tools.
3.5 LPKF reserves the right to substitute the components used with components of an equal or higher specification.
4. Timing and period 时间和期限
4.1. The customer coordinates timing and periods for the services to be performed in a timely manner with LPKF. Timing and periods are only binding when these have been accepted expressly in writing by LPKF.
4.2 LPKF performs the services during the working hours customary with LPKF, unless the parties have agreed otherwise in the Service Contract. Services that LPKF executes outside of the customary working hours are to be compensated with the respective applicable surcharges. Public holidays of the PRC - if applicable- do not count as regular working hours.
5. Obligations of the customer 客户的义务
5.1 The customer communicates to LPLKF the name of a contact person who coordinates with the services in his company. The customer grants free and unobstructed access to the employees of LPKF to the Objects of the Contract in a state suited for testing and servicing and makes certain that the service personnel of LPKF can work on the system without spatial limitations and in the case needed provides at its own cost the required means such as power, water and pressurized air including the required connections and if so required a place of work with the suitable equipment. It provides information to LPKF about the system and makes available the required documentation regarding the Object of the Contract. Furthermore, it makes available personnel fluent in German or English at its own cost as support personnel upon request of LPKF and it guarantees that the service employees of LPKF can begin and conclude the service without interruptions. If an Object of the Contract is classified as “Laser class 4” the customer takes care for the duration of the service there are work barriers, work and laser protection equipment available in the machine area as defined in the national standard and industry standard Safety of laser products and other applicable laws and regulations.
5.2 The customer takes all necessary safety measures and informs the service personnel - as far as necessary - about internal safety regulations. The customer is obligated to cooperate with and support LPKF in providing the services, if and as far as required as well as disposing at his cost of the operating and lubrication materials when required and used as well as the exchange wear and / or tear parts complying with the legal regulations.
5.3 The customer remains responsible for a potentially required regular maintenance, cleaning and control of the Objects of the Contract, unless these are entrusted to LPKF through the Service Contract with LPKF. This includes reasonable precautions according to the present technical state of art in order to prevent an intrusion of virus and/or malware programs into the software of the Objects of Contract. Furthermore, the customer is obligated to record damages, failures, virus/malware programs as well as any other operational occurrences to the Objects of Contract that are not conforming to the norm and to inform LPKF of such in a timely manner before the start of the services. This also applies for modifications to the Objects of Contract such as additions, partial replacements, relocations etc. If such modifications impact the effort to be performed for the services, then LPKF is authorized to adjust the agreed remuneration according to article 3.4 section 3 page 2.
6. Supplemental cooperation obligations in the case of remote maintenance contract 远程维护合同的配合补充义务
6.1 In the case of remote maintenance work the necessary software (including updated virus protection software) and hardware must be made available by the customer at his own expense. If the telephone line or the connection is faulty and LPKF cannot or can only receive data insufficiently, LPKF is released from the contractual service. This also applies, if the data quality does not allow LPKF to perform the services. LPKF informs the customer in such cases about the failure of the telephone line or the telephone connection.
6.2 The defined technical installations as well as the required communications connections must be made available and kept in an operative state by the customer. The services are based on the data transmission technology and especially of the transmission means as available at the time of concluding of the contract. In as far as necessary these are adjusted to the technological progress. The resulting expenses are to be borne by the customer, unless the technological improvement results in benefits only to LPKF.
6.3 Modifications that are performed by the customer to the technical surrounding are to be notified and coordinated in advance if they may impact the agreed upon remote service performance. The customer must follow the instructions provided by LPKF with regard to the detection, limitation, reporting and descriptions of failures.
6.4 The customer must make available persons who are trained in the technical matters and language for the Tele-service. LPKF is only obligated to react to failure reports that are conclusive and meaningful, that are transmitted by the customer in the form of a completely filled failure report, transmitted as an e-mail message. The failure report is attached to the Service Contract as an annex. In the case of failure reports and questions, in case of ambiguities, the customer will transmit additional information and documents to LPKF.
6.5 In cases where the remote maintenance might lead to a risk for persons and equipment, the customer for reasons of his supervisory responsibility must send a confirmation that the planned measure can be executed without risks (confirmation). If not every Object of Contract can be confirmed on site, then a reliable safeguard against damages to persons and equipment must be established by the customer.
6.6 The customer must especially ensure that no persons can be injured on site in connection with the performance of the service. LPKF shall be responsible for the damages caused by its employees during the performance of the services.
7. Remuneration 价款
7.1 The services by LPKF will be compensated according to the agreements as concluded. If not stipulated otherwise the remuneration covers the labor costs required for the performance of the service as well as the costs for providing tools and for the preparation of the documentation in the meaning of article 3.4 page 2, however it does not cover the expenses for travel and travel time and other special costs. If the customer fails to perform its obligation according to article 5.3, then LPKF is authorized to charge remuneration for increased maintenance time.
7.2 The contract prices are net and fixed prices. The value added tax is added at the valid rate charged at the time and place the tax obligation becomes due.
7.3 If not otherwise regulated in the Service Contract LPKF issues an invoice after the performance of the service. Such is payable immediately upon receipt without deduction. If the customer falls into arrears with the payment, then LPKF has the right to refuse further service and to an extraordinary cancellation of the existing Service Contracts.
7.4 Modifications and reconstruction measures of the Objects of Contract do not count as service performance. These must be ordered by the customer separately and compensated according to the actual expenses. The same applies to the elimination of deviations from specifications or failures, which, in LPKF´s findings, were caused by external force or other unforeseen impacts, inappropriate use, modifications to software, software environment and hardware or lack of compliance with the installations, maintenance and environmental conditions as established by LPKF. In such cases LPKF offers the required measures to reinstate the functionality of the Objects of Contract after an examination. In such cases the parties will jointly define a process and the required steps. The obligation of the customer for remuneration is not modified.
8. Claims for deficiencies 缺陷索赔
8.1 LPKF executes the contract services professionally in accordance with the established rules of good practice in engineering and warrants that these do not present any defects. A warranty to have diagnosed, eliminated or repaired completely all and any failures and deficiencies of the Objects of the Contract is not given for the contractual services, neither a guarantee for the functional capability of the Objects of Contract. If one of the services provided by LPKF does not conform to the contractual or state of the art requirements or presents a deficiency, this will in the discretion of LPKF either be redone or corrected (Rectification). This also applies if parts are used in the services, which are defective.
If a Rectification is objectively impossible or if the customer proves that a rectification is an unreasonable burden, the customer instead of the Rectification can request a relative decrease in the remuneration. Regarding the decrease of remuneration each party can request the decision by a qualified third party as jointly designated by the customer and LPKF whose decision is binding on the parties.
8.2 If LPKF has not fulfilled its obligation for correction or redoing according to article 7.1, then the customer is entitled to terminate the Service Contract after a reasonable period as set by the customer for performance, if the continuance of the Service Contract due to the severity of the fault cannot reasonably be required, or to withdraw from the contract or to reduce the remuneration according to the legal provisions. The customer has these rights also in the case of a failed rectification. The customer must however grant LPKF two opportunities for a successful rectification.
8.3 Customer shall only be entitled to the legal right to remedy the defect himself in cases of risks to the operational safety of the Objects of Contract or for the prevention of significant damages.
8.4 Claims for compensation as well as claims for futile expenditures due to quality or legal deficiencies are excluded, unless LPKF is liable according to the provisions in article 9.
9. Liability 责任
9.1 LPKF is liable to the customer for damages and futile expenses of all kinds, especially for damages that not occurred to Objects of Contract, for delayed performance of the service or failures in the obligations from consulting and duty to inform, for whatever legal reason, only in the case of intent, gross negligence, culpable injury to life, body or health in the case of deficiencies that were maliciously concealed and in the context of a specific guarantee assurance.
In case of a breach of contract, by which the purpose of the contract is at risk (breach of a significant contract obligation) LPKF is also liable in the case of negligence, however, limited in the amount to typical contractual, reasonable foreseeable damage in the amount of euro 100,000. Further compensation claims for damages, as well as, claims for futile expenses by the customer are excluded.
9.2 In the case that LKPF is in arrears with the performance of the services, the customer has to grant a reasonable extension to the performance of the service of at least 24 hours. It is only after the expiration of this deadline that the customer has the right to withdraw from the contract and to claim compensation for damages due to non-fulfillment of the contract. A possible claim for damages due to delay is limited to 0.5 % of the annual remuneration for the calendar year in which the delay occurs for each begun calendar week of delay and with a maximum to the total value of the contract.
9.3 Within the LPKF-Group only the contract partner is liable to the customer. Claims towards other group companies are excluded.
9.4 For claims according to tort for which the LKPF is liable to the customer or a third party, the provisions of article 8.1 do not apply. In that case only the respective legal regulation applies.
10. Statutes of limitation s of claims 索赔诉讼时效
10.1 Claims for deficient service in the meaning of articles 8.1 to 8.3 as well as warranty claims for spare parts expire after 12 months. The statute of limitations begins when the injured parties know or should have known their rights are infringed.
10.2 For other claims, especially for claims for compensation of damages as well as claims for futile expenditures according to article 9 the legal regulations apply.
11. Final provisions 最终条款
11.1 LPKF is entitled to transfer rights and obligations to other companies within the group or to third parties (service providers). The customer can transfer the right and duties under this contract to third parties only with the acceptance of LKPF. If the customer cedes the Object of Contract to third parties, then LPKF will deny this right only for significant concerns.
11.2 If a case of force majeure leads to an interruption of the performance of the service, then the parties are released from their obligations from the respective Service Contract for the period of the interruption. If the case of force majeure permanently makes the performance completely impossible, then the parties are entitled to cancel the respective Service Contract. Claims for Compensation are excluded. As cases of force majeure especially the following events are included: war, acts of authority, sabotage, strikes and lock-outs, natural catastrophes, geological changes and impacts. Each party is obligated to give notice to the other party immediately upon becoming aware of the occurrence of a force majeure with all details. Furthermore, the parties will consult about reasonable measures to be undertaken.
11.3 LPKF is entitled to save and process data that are related to the business relationship with the customer respecting the legal regulations especially the PRC Contract Law. LPKF is also entitled to pass these data to service providers for the purpose of performance of the service.
11.4 The parties are obligated to treat as confidential information and documents to this contract, especially the data and information exchanged related to product secrets and product related data, and to use such data only for the contractual services and to make these available to third parties only if these are required for the execution of the contract and to oblige employees to the same.
11.5 LPKF is entitled to process the information and data obtained in the course of the service about the conditions and state needed for the improvement of the products and services as well as for recommendations about further use of the Objects of the Contract. This does not apply to such information and data that concern product secrets and know-how of the customer or that are deemed to require protection in the course of business.
11.6 Modifications, additions and cancellations of Service Contracts require the written form. Previous Service Contracts become invalid with the conclusion of a Service Contract with the same contents.
11.7 If one or more conditions of these General Service Conditions are fully or partially invalid, then the remainder of the conditions is not affected by it.
11.8 The place of jurisdiction is at the election of the people’s court in the location of the defendant’s domicile, where the contract is performed or signed, in the location of the plaintiff’s domicile or in the location of the Object of the Contract.
11.9 These General Service Conditions and the respective Service Contracts are subject to the PRC law under exclusion of the UN law for the sale of goods and the referral obligations of international private law.
In March 2016
LPKF (Tianjin) Co., Ltd.