AGB National
General Terms and Conditions of Umuntu GmbH (national)
§1 Scope of application
(1) These General Terms and Conditions (hereinafter referred to as “GTC”) of Umuntu GmbH (hereinafter referred to as “UMUNTU” or “we”) shall apply to all transactions concerning delivery to the customer by UMUNTU, insofar as the customer has his branch in Switzerland.
(2) The scope of application of these GTC is limited to contracts with entrepreneurs, legal entities under public law or special funds under public law. These GTC shall not apply in dealings with consumers.
(3) These General Terms and Conditions apply exclusively. The inclusion of conflicting, supplementary or deviating terms and conditions of the customer is hereby objected to. These shall also not apply if we carry out the delivery to the customer in knowledge of or without express objection to the customer’s GTC.
(4) These General Terms and Conditions shall also apply to future transactions between UMUNTU and the customer without the need for renewed inclusion.
§2 Documentation rights
(1) Offers, cost estimates and other documents shall remain our property and may only be made available to third parties with our prior written consent.
(2) All (copyright) rights to samples, devices, tools, drawings, cost estimates, drafts and plans produced by us, in particular patents, copyrights and inventor’s rights, shall belong exclusively to us. They may only be made accessible to third parties if we have expressly given our written consent thereto.
(3) The transfer of objects and documents described above does not constitute a transfer or granting of rights (licence of use).
§3 Conclusion of contract
(1) Unless expressly stated otherwise, our offers are subject to confirmation and non-binding.
(2) The contract is not concluded until we have confirmed the order in writing or have rendered our services. We shall be entitled to accept an offer made by the customer by written order confirmation within ten working days of receipt of the offer by us. If the contract is concluded through the provision of services, this must be provided to UMUNTU within three weeks of receipt of the customer offer. Otherwise a contract will not be concluded.
§4 Contents of contract
(1) The performance owed under the contract shall be determined in accordance with the agreement reached, in particular the order confirmation.
(2) The agreement of a guarantee must be in writing in order to be effective. The statutory warranty claims of Switzerland shall remain unaffected by this.
(3) Subsequent changes or adjustments to the service owed by UMUNTU are inadmissible if they are customary or technically necessary and do not unreasonably burden the customer.
§5 Delivery time; Delivery time; Force majeure
(1) Unless otherwise agreed in individual cases, delivery periods are approximate. UMUNTU announces the actual time of delivery with a reasonable lead time, usually two weeks, in writing. The actual time of delivery shall be announced by UMUNTU with a reasonable lead time.
(2) The beginning of a delivery period requires the clarification of all technical questions. The delivery period shall not commence before the customer has fulfilled his obligations to cooperate in this respect. The customer’s obligations to cooperate shall consist in particular in consultation with the installer who is to carry out the installation. If necessary also in the clarification with the lessor, if structural measures are necessary or the rental contract demands it.
(3) An agreed delivery period does not begin in the case of the agreement of an advance performance obligation of the customer, such as the making of a down payment, before the customer has fulfilled the applicable advance performance obligations.
(4) UMUNTU is entitled to the defence of non-performance of the contract.
(5) An agreed delivery period is subject to complete and timely delivery by our contractual partners (self-delivery reservation).
(6) The delivery period shall be extended appropriately in the event of force majeure, in particular, but not exclusively, due to floods, natural disasters, shortage of raw materials, terrorist attacks, strike. UMUNTU will inform the customer immediately about the existence of force majeure as well as the expected end of this circumstance. If the force majeure persists continuously for more than six weeks or if the delivery date is delayed by more than eight weeks due to force majeure, the customer is entitled to cancel the contract. In the event of force majeure, the assertion of further claims is excluded.
(7) We are prepared to make partial deliveries unless this is unreasonable for the customer.
§6 Passing of risk
(1) The risk of accidental loss shall pass to the customer upon delivery to the customer, his carrier or a third party designated by him ex works Ermatingen (Thurgau) (Incoterms 2010 ex works).
(2) If the Customer does not accept the goods declared ready for delivery at the time of delivery (§5), the risk of accidental loss shall pass to the Customer at the time of delivery.
§7 Default in acceptance; damage due to delay
(1) If the customer does not accept the goods on time or if he is otherwise in default of acceptance, he shall owe UMUNTU an amount of 0.5% of the order value or the value of the partial delivery for each week commenced, but not more than a total of 5% of the order value or the value of the partial delivery as damages. In individual orders Umuntu GmbH reserves the right to include contractual penalties in the contract which are related to the volume of the order.
(2) The customer has the right to prove a lower damage, UMUNTU has the right to prove a higher damage.
§8 Prices; Terms of Payment; Price Adjustment
(1) All prices are net prices and do not include the statutory value added tax applicable at the time of delivery.
(2) Any other costs incurred, in particular for handling payment, transport, import and export duties, fees, etc., shall be borne by the customer.
(3) Unless otherwise agreed in individual cases, all prices shall apply ´ex works´ (EXW Incoterms 2010), Ermatingen (Thurgau), Switzerland.
(4) The deduction of discounts shall require a separate agreement in each individual case.
(5) Payments shall be due within (10) days after transfer of risk.
(6) If more than fourteen weeks elapse between conclusion of the contract and transfer of risk and if we are not responsible for exceeding this period, we shall be entitled to increase the price in accordance with the additional production costs incurred by us, in particular due to increased raw material prices.
§9 Notice of defects
(1) The customer shall be obliged to inspect the services rendered for defects within ten (10) working days of the passing of risk and to notify any defects discovered without delay within a maximum of three (3) working days.
(2) If a defect becomes apparent which was not identifiable within the scope of the examination in accordance with Clause 1, it must be notified within (3) working days of its actual discovery.
(3) Any defects discovered shall be notified to us in text form. The notice of defects shall be accompanied by a detailed description showing the presumed causes and effects. Upon request, suitable documentation material, in particular photographs, shall be made available to us.
(4) If the customer does not comply with his obligation to inspect and give notice of defects as determined above, the service shall be deemed approved and he shall not be entitled to any warranty claims. This shall not apply if we fraudulently concealed the defect. The statutory warranty claims of Switzerland remain unaffected.
(5) The customer is obliged to bear UMUNTU’s costs associated with the unjustified notification of defects.
(6) The periods of time in Clauses 1 and 2 shall not begin until the customer has received the documentation, insofar as UMUNTU owes documentation.
§10 Warranty
(1) UMUNTU shall perform subsequent performance by repair or replacement (delivery of a defect-free item). UMUNTU shall be entitled to choose the type of subsequent performance.
(2) UMUNTU shall be entitled to effect subsequent performance within a reasonable period of 2 months.
(3) Claims for warranty of defects which are due to improper handling by the customer or disregard of the instructions for use are excluded.
(4) Warranty claims based on defects – with the exception of claims for damages – shall become statute-barred within twelve months of the passing of risk. This does not apply to maliciously concealed defects or defects that are not recognisable.
(5) For the assertion of damages, § 11 shall apply additionally.
§ 11 Liability
(1) UMUNTU shall be liable in accordance with the statutory provisions in the event of culpable breach of duty for all damages resulting from injury to life, limb or health.
(2) UMUNTU is liable according to the legal regulations in case of culpable violation of essential contractual obligations. However, the liability is limited to the foreseeable, contract-typical damage, if UMUNTU does not violate essential contractual obligations intentionally or grossly negligently. Essential contractual obligations are those which are absolutely necessary to achieve the purpose associated with the contract and on the observance of which the customer may rely.
(3) UMUNTU is liable for the intentional and grossly negligent violation of non-essential contractual obligations.
(4) UMUNTU shall be liable in accordance with the provisions of the Swiss Product Liability Act.
(6) Otherwise, liability is excluded.
§12 Set-off; right of retention
(1) Offsetting by the customer is only permissible with undisputed or legally established claims. In principle, offsetting is prohibited.
(2) Clause 1 shall apply mutatis mutandis to the exercise of a right of retention.
(3) Clauses 1 and 2 shall not apply if this would prevent the customer from asserting a claim which is closely synallagmatic with the claim asserted by UMUNTU.
§13 Retention of title
(1) Goods delivered by us shall remain our property until full payment of all claims arising from the business relationship (reserved goods). This retention of title does not cease to apply if the goods are installed or combined with another item. The customer is entitled to dispose of the reserved goods in the ordinary course of business. In the case of a current account, the reserved property serves as security for the balance claim in favour of UMUNTU.
(2) The customer is obliged to sufficiently insure the reserved goods against fire, water and theft at his own expense.
(3) The processing or transformation of the reserved goods by the customer is always carried out for UMUNTU. If reserved goods are processed into a new item together with other items not belonging to UMUNTU, UMUNTU shall acquire co-ownership of the new item. The co-ownership share shall be measured according to the value of the reserved goods in proportion to the value of the other processed or transformed objects at the time of processing or transformation.
(4) If the customer combines or mixes the goods subject to retention of title to form a single item and one of the other items is to be regarded as the main item, UMUNTU shall be entitled to proportionate ownership of the resulting item. The co-ownership share shall be measured according to the value of the reserved goods in proportion to the value of the other combined or mixed objects at the time of the combination or mixing. The customer already now assigns this co-ownership to UMUNTU, whereby UMUNTU already now accepts the assignment.
(5) The customer hereby assigns to UMUNTU as security all claims against third parties arising from the resale of the reserved goods, including all ancillary rights. UMUNTU accepts this assignment. The customer undertakes to retain title to the goods vis-à-vis his customers until the purchase price has been paid in full. UMUNTU is authorized to collect the resulting purchase price claims for UMUNTU’s account until the revocation or until the suspension of payment to UMUNTU. The customer is not entitled to assign this claim. UMUNTU will only revoke the authorisation to collect if the customer is in default of payment or if an application is made to open insolvency proceedings against the customer’s assets. In the event of the revocation of the direct debit authorization, the customer must provide UMUNTU with the information necessary for the collection of the claim by presenting the corresponding delivery contracts with his customers, the invoices and an overview of the payments made by the customers to the customer.
(6) The customer shall inform UMUNTU immediately in text form of any access by third parties to goods in which UMUNTU has ownership, in particular also compulsory execution measures in the reserved goods and the claims of UMUNTU, and shall transmit the information and documents required for defence.
(7) If the realizable value of the security rights to which UMUNTU is entitled exceeds all claims against the customer not yet paid to UMUNTU by more than ten percent, UMUNTU shall be obliged to release the security rights at the customer’s request. UMUNTU is entitled to select the security rights to be released.
§14 Place of jurisdiction; Applicable law
(1) The exclusive place of jurisdiction shall be the court having jurisdiction for the registered office of Umuntu in Ermatingen, Switzerland.
(2) UMUNTU is also entitled to sue the plaintiff at his general place of jurisdiction.
(3) Swiss law applies.
§15 Written form
(1) All amendments and supplements to these GTC and the waiver of their validity must be made in writing in accordance with § OR 11 para. 1 and OR 16 para. 1. This also applies with regard to a possible waiver of the written form requirement.
§16 Severability clause
(1) Should one or more provisions of these GTC or parts of a provision be invalid, this invalidity shall not affect the validity of the remaining provisions or the contract as a whole.
(2) The parties undertake to agree by mutual agreement on a valid provision to replace the invalid provision with one that comes closest in economic terms to the invalid provision.
Clauses 1 and 2 shall apply mutatis mutandis in the event of a loophole.
AGB International
General terms and conditions of Umuntu GmbH (international)
§1 Scope of application
(1) These General Terms and Conditions (hereinafter “GTC”) of Umuntu GmbH (hereinafter “UMUNTU”) apply to all transactions concerning the delivery and the provision of services to the customer by UMUNTU in connection with the delivery, unless the customer is domiciled in Switzerland.
(2) The scope of application of these GTC is limited to contracts with entrepreneurs.
(3) These GTC apply exclusively. The inclusion of conflicting, supplementary or deviating terms and conditions of the customer is hereby objected to. These shall also not apply if we carry out the delivery to the customer with knowledge of or without express objection to the general terms and conditions of the customer.
(4) These GTC also apply to future transactions between UMUNTU and the customer.
§2 Rights to documents
(1) Offers, cost estimates and other documents shall remain our property and may only be made available to third parties with our prior written consent.
(2) All (copyright) rights to samples, devices, tools, drawings, cost estimates, drafts and plans produced by us, in particular patents, copyrights and inventor’s rights, shall belong exclusively to us. These documents and rights may only be made accessible to third parties if we have expressly given our written consent thereto, in which case only the written form shall be sufficient.
(3) The transfer of objects and documents described above does not constitute a transfer or granting of rights (user licence).
§3 Secondary obligations of the customer
(1) The customer shall be obliged to inform us immediately of all binding statutory regulations which apply at his registered office or at the destination of the goods known to him, insofar as these binding statutory regulations conflict with the contents of this contract or may impair the performance of this contract.
(2) The customer undertakes to provide us with comprehensive support if we have to take measures within the framework of the fulfilment of this contract in the country in which the customer is domiciled or the destination of the goods known to the customer is located.
§4 Conclusion of contract
(1) Our offers are subject to change without notice. This shall also apply if we send a provisional invoice (pro forma invoice) or comparable declarations at the request of the customer, in particular for the purpose of fulfilling sovereign requirements.
(2) The contract is not concluded until we have confirmed the order in writing. An advance payment of at least 50% of the order is required for large orders, middlemen and the like. For single orders in the B2C area 100% prepayment will be charged. Production and delivery always take place only after fulfilment of these contract conditions.
(3) An offer submitted by the customer is irrevocable for a period of two weeks from receipt by UMUNTU. This does not apply if the customer has expressly reserved the right of free revocation in writing.
§5 Contents of contract
(1) The contractually owed performance is determined according to the agreement in accordance with the order confirmation, alternatively the usual purpose of use goods of the same kind. A special purpose of use intended by the customer shall only be decisive if this purpose of use was expressly notified to us in writing prior to conclusion of the contract, whereby the written form is required for this.
(2) The subject matter of the contract shall be in accordance with the contract if it satisfies the legal requirements, in particular the state, public-law or official requirements, at our registered office. We shall only be responsible for compliance with the requirements at the customer’s registered office, in the country of the destination of the goods known to the customer or in any other third country if we have given an express written undertaking in this respect in the intended form and the customer fulfils his obligations to cooperate with regard to existing requirements, in particular in accordance with § 3. In principle, it is the customer’s responsibility to obtain any necessary approvals.
(3) Technical specifications of our products such as weight and dimension specifications, performance and property descriptions as well as illustrations, drawings and other documents do not constitute guarantees of quality. Certain properties shall only be deemed to be guaranteed if a separate written agreement (quality guarantee) has been made. The written form of the guarantee declaration is authoritative.
(4) Any documentation shall be in the German language. The agreement of an obligation of UMUNTU to make any documentation available in another language requires the written form.
(5) Subsequent changes or adjustments to the service owed by UMUNTU are permissible, provided they are customary in the trade or technically necessary and do not place an unreasonable burden on the customer.
§6 Delivery period; Force majeure; Partial delivery; Non-compliance with delivery period
(1) Unless otherwise agreed in individual cases, delivery periods are approximate. UMUNTU announces the actual time of delivery with a reasonable lead time, usually two weeks, in writing. The actual time of delivery to be announced may not be more than two weeks after the previously announced approximate delivery period, subject to the following Sections 2, 3, 5 and 6.
(2) The beginning of a delivery period requires the clarification of all technical questions. The delivery period shall not commence before the customer has fulfilled his obligations to cooperate in this respect.
(3) An agreed delivery period shall not begin in the event of the agreement of an advance performance obligation on the part of the customer, such as the payment of a down payment or proof of a financing commitment, before the customer has fulfilled the relevant advance performance obligations.
(4) UMUNTU is entitled to the defence of non-performance of the contract.
(5) An agreed delivery period is subject to complete and timely delivery by our contractual partners (self-delivery reservation).
(6) The delivery period shall be extended appropriately in the event of force majeure, in particular, but not exclusively, due to floods, natural disasters, shortage of raw materials, terrorist attacks, strike. UMUNTU will inform the customer immediately about the existence of force majeure as well as the probable end of this circumstance. If the situation of force majeure continues uninterrupted for more than six weeks or if the delivery date is delayed by a total of more than eight weeks due to force majeure, the customer shall be entitled to cancel the contract. In the event of force majeure, the assertion of further claims is excluded.
(7) We are prepared to make partial deliveries unless this is unreasonable for the customer.
(8) Claims for damages as a result of non-compliance with the delivery period shall be governed by § 12.
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§7 Transfer of risk
(1) The risk of accidental loss shall pass to the customer upon transfer to the carrier of the customer (FCA Ermatingen, Switzerland – Incoterms 2010).
(2) If the customer does not accept the goods declared ready for delivery at the time of delivery (§ 6 No. 1 Sentence 2), the risk of accidental loss shall pass to the customer at the time of delivery.
§8 Acceptance delay; delay damage
(1) If the customer does not accept the goods on time (§ 7) or if he is otherwise in default of acceptance, he shall owe UMUNTU an amount of 0.5 % of the order value or the value of the partial delivery for each week commenced, but a maximum of 5 % of the order value or the value of the partial delivery as damages.
(2) The customer has the right to prove a lower damage, UMUNTU the right to prove a higher damage.
§9 Prices; Terms of payment
(1) All prices are net prices and do not include the statutory value added tax applicable at the time of delivery.
(2) Unless otherwise agreed, payments shall be made in EUR (alternatively in CHF or USD if agreed otherwise). If payment in EUR (alternatively CHF/USD) is inadmissible, payment shall be made in the currency applicable to the customer’s registered office. In this case, payment shall be made in the amount corresponding to the invoice value in EUR at the due date of the (partial) payment. If payment in both of the aforementioned currencies is impossible, payment shall be made in a third currency. Clause 3 and Clause 6 Clause 2 shall apply mutatis mutandis.
(3) Any other costs incurred, in particular for the processing of payment, transport, import and export duties, fees, etc., shall be borne by the customer.
(4) Unless otherwise agreed in individual cases, all prices are Free Carrier (FCA Incoterms 2010), Ermatingen, Switzerland.
(5) The deduction of a discount requires a separate agreement in the individual case.
(6) Payments shall be made at the registered office of UMUNTU in Ermatingen, Switzerland. Costs and risk of the payment shall be borne by the buyer.
(7) Unless otherwise agreed in writing (Art. 13 CISG), payments shall be due within ten (10) days after transfer of risk.
(8) If more than fourteen weeks elapse between conclusion of the contract and transfer of risk and if we are not responsible for exceeding this period, we shall be entitled to increase the price in accordance with the additional production costs incurred by us, in particular due to increased raw material prices.
§10 Notice of defects; exclusion of warranty rights
(1) The customer shall be obliged to inspect the delivered goods immediately, but at the latest within ten (10) working days of the passing of risk, to ensure that they are free of defects and to notify any defects discovered without delay within three (3) working days at the latest. This shall not apply if the actual transfer of risk takes place before the agreed delivery date (time of delivery according to § 6 No. 1 Sentence 2). In this case, the inspection period shall commence on the agreed delivery date (time of delivery pursuant to § 6 No. 1 Sentence 2).
(2) Furthermore, the customer is obliged to notify us within three (3) working days of actual discovery of any defects which could not be detected within the scope of the examination (Clause 1, Sentence 1).
(3) The complaint must be made in writing. The complaint must be made with a detailed description showing the presumed causes and effects. Upon request, suitable documentation material, in particular photographs, shall be made available to us.
(4) If the customer does not comply with his obligation to inspect and give notice of defects as determined above, the service shall be deemed approved and he shall not be entitled to warranty claims or claims for damages. This shall not apply if we fraudulently concealed the defect or if the exclusion would be incompatible with the provisions of a guarantee (§ 5. No. 3).
(5) The customer is obliged to bear UMUNTU’s costs associated with the unjustified notification of defects.
(6) The time limits set out in Clauses 1 and 2 shall not commence until the customer has received the documentation, insofar as UMUNTU owes documentation.
(7) If a period of two years has elapsed between the actual handover and the notification of a defect, the customer can no longer assert any warranty rights.
§11 Buyer’s rights in the event of breach of duty by Seller (=warranty claims); limitation of claims; relationship to damages
(1) In the event of defective performance by UMUNTU, i.e. if the actual performance of the service falls short of the contractually owed performance (defectiveness), the customer’s claims shall be governed by the following provisions.
(2) In the first instance, the customer is only entitled to demand from UMUNTU within a reasonable period of time the removal of the defective performance (removal of defects). UMUNTU shall be responsible for selecting the type of remedy, essentially repair or replacement, by which UMUNTU will remedy the defective performance. For the purpose of remedying the defect, the customer must grant UMUNTU or third parties commissioned by UMUNTU access to the goods and support any measures that become necessary and are required. UMUNTU shall bear the costs of remedying the defect with the exception of those additional costs which are connected with the onward transport of the goods to a destination other than the original destination.
(3) If UMUNTU does not remedy the defect within the reasonable period of time or if the type of remedy chosen by UMUNTU does not lead to freedom from defects, the customer shall be entitled to reduce the purchase price.
(4) In principle, the customer is only entitled to cancel the contract if
(a) the defect constitutes a material breach of contract; and
(b) the removal of the defect was not carried out within the reasonable time or did not lead to its absence. Lit. b. shall not apply if the defect constitutes a material breach of contract and the remedy of the defect is unreasonable for the customer due to the circumstances of the individual case or will obviously remain unsuccessful.
(5) The customer shall also be entitled to cancel the contract if UMUNTU fails to render the service in the event of non-compliance with the delivery period despite the setting of a further reasonable deadline, which as a rule may not be less than two (2) weeks. With regard to this additional period, § 6. no. 6 sentence 1 shall apply mutatis mutandis.
(6) The customer is obliged to assert the claims according to clauses 2 – 5 within a reasonable period of time. He must request UMUNTU to perform the actions in writing.
(7) If the non-performance or defective performance relates only to a part of the delivery, the claims according to clauses 2 and 3 shall only apply with regard to that part which is affected by the non-performance or defective performance. The cancellation of the entire contract (clauses 4 and 5) can only be declared in such a case if the incompleteness of the delivery or only partial delivery in accordance with the contract constitutes an essential breach of contract in itself.
(8) Warranty claims – with the exception of claims for damages – shall become statute-barred within twelve months of the passing of risk. This shall not apply to fraudulently concealed defects or defects that are not recognisable (§ 10 No. 3).
(9) The customer can only demand the cancellation of the contract or replacement delivery if he can return the previously received service essentially in the condition in which he received it.
(10) The aforementioned claims due to defective performance, which are attributable to improper handling by the customer or disregard of the instructions for use, are excluded.
(11) Clause 4.b. and Clause 4 sentence 2 shall apply mutatis mutandis to the assertion of claims for damages due to defects, subject to § 12.
§ 12 Liability
(1) UMUNTU shall be liable in accordance with the statutory provisions in the event of culpable breach of duty for all damages resulting from injury to life, limb or health.
(2) UMUNTU shall be liable in accordance with the provisions of the applicable Product Liability Act.
(3) In the event that a contractual guarantee is agreed (§ 5 No. 3), UMUNTU shall be liable in accordance with the guarantee declaration.
(4) UMUNTU shall be liable for intentional and grossly negligent breach of duty.
(5) In the case of grossly negligent breach of duty, the liability according to No. 4 is limited to three times the order value concerned. If three times the order value concerned is less than the amount of EUR 25,000.00, UMUNTU shall be liable up to an amount of EUR 25,000.00 in the event of concrete damage.
(6) Liability for other negligent breaches of duty or damages through no fault of UMUNTU is excluded.
§13 Set-off; Right of retention
(1) Offsetting by the customer is only permissible with undisputed or legally established claims.
(2) For the exercise of a right of retention, Clause 1 shall apply accordingly.
§14 Reservation of title
(1) The goods delivered by us shall remain our property until the respective delivery invoice has been paid in full (reserved goods).
(2) The customer is obliged to sufficiently insure the reserved goods at his own expense against fire, water and theft.
§15 Governing law
(1) This contract and its conclusion are subject to the United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG). In addition, the law of Switzerland shall apply.
(2) Clause 1 sentence 2 shall apply accordingly to non-contractual claims.
§16 Place of jurisdiction
The exclusive place of jurisdiction is Umuntu GmbH, Ermatingen, Switzerland. Swiss law applies.
§17 Other; written form
(1) All declarations must be made in the language of the contract in order to be effective.
(2) The customer may only transfer rights and obligations arising from this agreement in whole or in part to third parties with our prior written consent.
(3) Unless otherwise expressly stipulated in these GTC, the written form requirement shall be governed by Art. 13 CISG. This shall not apply to all amendments and supplements to these General Terms and Conditions and to any waiver of their validity which require the written form. This shall also apply with regard to a possible waiver of the written form requirement.
(4) Should one or more provisions of these GTC or parts of a provision be invalid, this invalidity shall not affect the validity of the remaining provisions or the contract as a whole. The parties undertake to agree by mutual agreement on a valid provision to replace the invalid provision which comes as close as possible to the invalid provision in economic terms. The same shall apply in the event of a loophole.