Conditions for the performance of work on motor vehicles, trailers, power units and their parts and for cost estimates (Motor Vehicle Repair Conditions - Non-binding recommendation of the German Association of the Motor Trade (ZDK))

Motor vehicle repair conditions

Status: 12/2016

I. Placing of order

1. the services to be provided must be described in the order form or in a letter of confirmation and the expected or binding completion date must be stated.

2. the client shall receive a copy of the order form.

3. the order authorises the contractor to place subcontracts and to carry out test runs and transfer runs.

4. transfers of rights and obligations of the client arising from the order require the written consent of the contractor.

II Price details in the order form; cost estimate

1. at the request of the client, the contractor shall also note in the order form the prices that are likely to be used in the execution of the order. Price information in the order form may also be provided by reference to the relevant items in the price and labour value catalogues available at the Contractor’s premises.

2. if the client wishes a binding price quotation, a written cost estimate is required; in this, the work and spare parts are to be listed in detail and labelled with the respective price. The Contractor shall be bound by this cost estimate for a period of 3 weeks after its submission. The services rendered for the submission of a cost estimate may be charged to the Client if this has been agreed in the individual case. If an order is placed on the basis of the cost estimate, any costs for the cost estimate shall be offset against the order invoice and the total price may only be exceeded when invoicing the order with the consent of the client.

3. if the order form contains price details, VAT must be stated in the same way as for the cost estimate.

III Completion

1. the contractor is obliged to meet a completion date specified in writing as binding. If the scope of work changes or expands compared to the original order and a delay occurs as a result, the contractor must immediately state a new completion date, stating the reasons.

2. if the Contractor culpably fails to meet a completion deadline agreed in writing for more than 24 hours in the case of orders involving the repair of a motor vehicle, the Contractor shall, at its discretion, provide the Client with a replacement vehicle of the highest possible quality free of charge in accordance with the Contractor’s terms and conditions applicable in each case or reimburse 80% of the costs for the actual use of a rental vehicle of the highest possible quality. The Client must return the replacement or hire vehicle immediately after notification of completion of the object of the order; further compensation for damages caused by delay is excluded. The Contractor shall also be responsible for the impossibility of performance occurring by chance during the delay, unless the damage would also have occurred if performance had been rendered on time. In the case of commercially used vehicles, the Contractor may, instead of providing a replacement vehicle or assuming the costs of a hire car, reimburse the loss of earnings caused by the delay in completion.

3. the exclusions of liability in clause 2 shall not apply to damages resulting from a grossly negligent or intentional breach of obligations by the contractor, his legal representative or his vicarious agent, or in the event of injury to life, limb or health.

4. if the Contractor is unable to meet the completion date due to force majeure or operational disruptions through no fault of its own, there shall be no obligation to pay compensation for damages due to delays caused by this, in particular not to provide a replacement vehicle or to reimburse costs for the actual use of a hire vehicle. However, the Contractor shall be obliged to inform the Client of the delays insofar as this is possible and reasonable.

IV. Acceptance

1. acceptance of the object of the order by the Client shall take place at the Contractor’s premises, unless otherwise agreed.

The Client is obliged to collect the object of the order within 1 week of receipt of the notification of completion and delivery or sending of the invoice. In the event of non-acceptance, the Contractor may exercise its statutory rights. In the case of repair work carried out within one working day, the period shall be reduced to 2 working days.

3. in the event of default of acceptance, the contractor may charge the customary local storage fee. The object of the order may also be stored elsewhere at the discretion of the contractor. The costs and risks of storage shall be borne by the Client.

V. Calculation of the order

1. prices or price factors for each technically self-contained work service as well as for spare parts and materials used shall be shown separately in the invoice. If the client wishes the object of the order to be collected or delivered, this shall be at the client’s expense and risk. Liability for fault remains unaffected.

2. if the order is executed on the basis of a binding cost estimate, a reference to the cost estimate shall suffice, whereby only additional work shall be listed separately.

3. the calculation of the exchange price in the exchange procedure presupposes that the removed unit or part corresponds to the scope of delivery of the replacement unit or part and that it has no damage that makes reconditioning impossible.

4 VAT shall be borne by the customer.

5. any correction of the invoice must be made by the Contractor, as well as a complaint by the Client, no later than 6 weeks after receipt of the invoice.

Vl. payment

1. the invoice amount and prices for ancillary services shall be due for payment in cash upon acceptance of the object of the order and handover or sending of the invoice, but at the latest within 1 week after notification of completion and handover or sending of the invoice.

2. the client may only offset against claims of the contractor if the counterclaim of the client is undisputed or a legally binding title exists. This does not apply to counterclaims of the client arising from the same order. He may only assert a right of retention if it is based on claims from the same contractual relationship; the Contractor is entitled to demand an appropriate advance payment when placing the order.

Vll. extended right of lien

The contractor is entitled to a contractual right of lien on the items that have come into his possession as a result of the order due to his claim arising from the order.

The contractual lien may also be asserted for claims arising from work carried out earlier, deliveries of spare parts and other services, insofar as they are connected with the object of the order. The contractual right of lien shall only apply to other claims arising from the business relationship insofar as these are undisputed or a legally binding title exists and the object of the order belongs to the client.

Vlll. Liability for material defects

1. claims of the client due to material defects shall become statute-barred one year after acceptance of the object of the order. If the client accepts the object of the order despite being aware of a defect, he shall only be entitled to claims for material defects if he reserves the right to do so upon acceptance.

2. if the subject of the order is the delivery of movable goods to be manufactured or produced and the client is a legal entity under public law, a special fund under public law or an entrepreneur who is acting in the exercise of his commercial or independent professional activity when concluding the contract, claims of the client due to material defects shall become statute-barred one year after delivery. For other clients (consumers), the statutory provisions shall apply in this case.

3. the shortening of the limitation period in clause 1, sentence 1 and clause 2, sentence 1 shall not apply to damages based on a grossly negligent or intentional breach of obligations by the Contractor, its legal representative or its vicarious agent or in the event of injury to life, limb or health.

4. if the Contractor is liable under the statutory provisions for damage caused by slight negligence, the Contractor’s liability shall be limited: Liability shall only exist in the event of a breach of material contractual obligations, such as those which the contract specifically intends to impose on the Contractor according to its content and purpose or the fulfilment of which is essential for the proper execution of the contract and on the observance of which the Client regularly relies and may rely. This liability is limited to the typical damage foreseeable at the time the contract was concluded. The personal liability of the Contractor’s legal representatives, vicarious agents and employees for damage caused by them through slight negligence is excluded. Clause 3 of this section shall apply accordingly to the aforementioned limitation of liability and the aforementioned exclusion of liability. 5.

(5) Irrespective of any fault on the part of the Contractor, any liability of the Contractor in the event of fraudulent concealment of the defect, from the assumption of a guarantee or a procurement risk and under the Product Liability Act shall remain unaffected.

6 If a defect is to be remedied, the following shall apply:

a) The Client must assert claims for material defects with the Contractor; in the case of verbal notifications, the Contractor shall provide the Client with written confirmation of receipt of the notification.

b) If the subject matter of the contract becomes inoperable due to a material defect, the Client may, with the prior consent of the Contractor, contact another motor vehicle workshop. In this case, the Client shall have it included in the order form that the defect is to be remedied by the Contractor and that the removed parts are to be kept available to the Contractor for a reasonable period of time. The Contractor shall be obliged to reimburse the Client for the repair costs demonstrably incurred.

c) In the event of rectification of defects, the Client may assert claims for material defects based on the order for the parts installed to rectify the defect until the expiry of the limitation period for the object of the order. Replaced parts shall become the property of the Contractor.

IX. Liability for other damage

1. liability for the loss of money and valuables of any kind that are not expressly taken into safekeeping is excluded.

2. other claims of the client which are not regulated in Section VIII “Liability for material defects” shall become statute-barred within the regular limitation period.

3. the provisions in Section VIII “Liability for material defects”, Clause 4, shall apply accordingly to claims for damages against the Contractor.

X. Retention of title

Insofar as installed accessories, spare parts and aggregates have not become essential components of the subject matter of the order, the Contractor shall retain title to them until full, incontestable payment has been made.

Xl. Place of jurisdiction

The exclusive place of jurisdiction for all present and future claims arising from the business relationship with merchants, including bills of exchange and cheques, shall be the Contractor’s registered office. The same place of jurisdiction shall apply if the Client does not have a general place of jurisdiction in Germany, moves his domicile or usual place of residence out of Germany after conclusion of the contract or his domicile or usual place of residence is not known at the time the action is filed.

XII. Out-of-court settlement of disputes

1. motor vehicle arbitration centres

a) If the company is a member of the locally competent guild of the motor vehicle trade, the client may, in the event of disputes arising from this contract (with the exception of commercial vehicles with a total weight of more than 3.5 tonnes) or - with the client’s consent - the contractor may appeal to the motor vehicle arbitration board responsible for the contractor. The appeal must be made immediately after the point in dispute becomes known by submitting a written statement (notice of appeal) to the arbitration board.

b) The decision of the Motor Vehicle Arbitration Board does not exclude legal recourse.

c) By appealing to the Motor Vehicle Arbitration Board, the statute of limitations is suspended for the duration of the proceedings.

d) The proceedings before the Motor Vehicle Arbitration Board are governed by its rules of procedure, which will be provided to the parties by the Motor Vehicle Arbitration Board upon request.

e) Recourse to the Motor Vehicle Arbitration Board is excluded if legal action has already been taken. If legal action is taken during arbitration proceedings, the Motor Vehicle Arbitration Board shall cease its activities.

f) No costs will be charged for recourse to the Motor Vehicle Arbitration Board.

2. notice pursuant to § 36 of the Consumer Dispute Settlement Act (VSBG)

The contractor will not participate in a dispute settlement procedure before a consumer arbitration board within the meaning of the VSBG and is not obliged to do so.