VII. Claims for defects / warranty
- The customer must inspect the goods immediately after delivery and report any defects/incorrect deliveries/shortfall in quantities in writing without delay (within 1 week of receipt). The obligations to inspect and give notice of defects are governed by § 377 HGB (German Commercial Code). The Supplier shall have the opportunity to record and inspect the notified defect; the delivery item shall not be changed/processed/released to third parties for the time being. Insofar as measures are taken to minimise damage or negotiations are commenced on the grounds of a notified defect, this shall neither be deemed an acknowledgement nor a waiver of the objection to the notification not being made in good time.
- Delivered parts which turn out to be defective as a result of a circumstance prior to the passing of risk shall be repaired or replaced free of defects at the discretion of the Supplier; replaced parts shall become the property of the Supplier.
- After notification, the Purchaser shall grant the necessary time and opportunity to carry out all necessary repairs and replacement deliveries in the event of a justified complaint; otherwise the Purchaser shall be released from liability for the resulting consequences. Only in urgent cases to prevent disproportionately large damage or endanger operational safety, in which case the Supplier must be notified immediately, shall the Purchaser have the right to remedy the defect himself or have it remedied by third parties and demand reimbursement of the necessary expenses. If the defect is repaired or replaced within the scope of the warranty, this shall not trigger a new commencement of the warranty obligation. Multiple rectifications are permissible.
- If a complaint turns out to be justified, the Supplier shall bear the costs arising from the repair or replacement delivery only to the extent that no disproportionate burden occurs. Of the direct costs arising from the repair or replacement delivery, the Supplier shall bear the costs of the replacement delivery including dispatch to the originally agreed place of delivery. Any costs for dismantling and installation, labour costs or costs for transportation to a place other than the place of delivery shall be borne by the Purchaser.
- Within the framework of the statutory provisions, the Purchaser shall have the right to withdraw from the contract if the Supplier – taking into account the statutory exceptions – allows a reasonable deadline set for the repair or replacement delivery due to a material defect to elapse fruitlessly. If there is only an insignificant defect, the Purchaser shall only be entitled to reduce the contract price. The right to reduce the contract price shall otherwise be excluded. Further claims shall be determined in accordance with Section IX. 2 of these Terms and Conditions.
- In particular, the Supplier shall not assume any warranty in the following cases: Usability of the goods for the purpose intended by the customer, unless the usability has been expressly confirmed by contract, unsuitable or improper use, faulty assembly or processing/repair by the customer or third parties, installation of foreign parts, natural wear, excessive strain/wear (all rotating parts, drive, tools; scale is single shift operation), faulty or negligent treatment, chemical, electrochemical or mechanical influences, unless the supplier is not responsible for them. Customary deviations in weight, colour, dimensions and quantity do not constitute a defect.
- Properties shall only be deemed warranted if they are expressly designated as such in the contract. No warranty shall be assumed for information, advice and references regarding any performance characteristics, areas of application, possible uses, etc., unless they have been assured in writing. Oral information as well as information in the documents do not contain any assurances; they only serve the purpose of specification. As far as the materials to be used by the supplier are contractually specified, this only guarantees the specification and not the suitability of the materials for the contractual purpose. The Supplier shall only be obliged to provide information in the event of their obvious unsuitability. The customer shall inform himself of any export regulations and government regulations.
- In the case of used goods, a warranty is excluded unless the supplier conceals defects intentionally or through gross negligence.
- The Purchaser’s right of recourse against the Supplier shall only exist to the extent that the Purchaser has not entered into any agreements with its customer which go beyond the legally mandatory claims based on defects.
- If the customer or a third party commissioned by him carries out improper repairs, the supplier assumes no liability for the resulting consequences. The same shall apply to changes to the delivery item made without prior consent.
VIII. Retention of title
- Ownership of the delivered item shall remain reserved until complete payment of all claims arising from the delivery contract. This shall also apply to all future deliveries, even if this is not always expressly referred to. The object of purchase can be taken back if the customer behaves contrary to contract (in particular default in payment).
- As long as the ownership has not yet been transferred to the customer, he is obliged to treat the object of sale with care. In particular, he is obliged to insure the goods at his own expense against theft, fire and water damage as well as other damage at replacement value. If the Purchaser fails to provide proof of insurance at the Supplier’s request, the Supplier shall be entitled to insure the delivery item at the Purchaser’s expense. If maintenance and inspection work has to be carried out, the Purchaser shall carry this out in good time at its own expense.
- The Purchaser shall be entitled to resell the reserved goods in the ordinary course of business. The Purchaser hereby assigns to the Supplier all claims against the Buyer arising from the resale of the reserved goods (including balance claims arising from current account agreements, from sales, from processing and converting / combining the delivered goods) to the amount of the agreed final invoice amount (including value added tax); this also applies to the Purchaser’s claims in respect of the reserved goods on other legal grounds (insurance, tort, etc.). The assignment shall apply irrespective of whether the object of sale has been resold without or after processing. The customer remains authorised to collect the claim even after the assignment. The authority of the supplier to collect the claim himself remains unaffected. However, the Supplier shall not collect the claim as long as the Purchaser meets his payment obligations from the proceeds received, is not in default of payment and, in particular, has not filed for insolvency or suspended payments. As soon as the purchaser does not fulfil a contractual obligation, he shall disclose the assignment upon request and provide the necessary information and documents.
- If a customer of the Purchaser has effectively excluded the assignment of claims against him, the Purchaser and the Supplier shall act internally as if the aforementioned claims assigned in advance had been effectively assigned to the Supplier; the Supplier shall be authorised by the Purchaser to assert the claims in his name for his own account as soon as the Purchaser is no longer entitled to collect the claim in his own name in accordance with the above provision (Clause 3).
- The processing and transformation of the object of purchase by the Purchaser shall always be carried out for the Supplier without any liabilities arising therefrom. If the object of sale is processed or mixed with other objects not belonging to the Supplier, the Supplier shall acquire co-ownership of the new object in the ratio of the objective value of the object of sale subject to retention of title to the other processed objects at the time of processing/mixing. If the combination/mixing takes place in such a way that the Customer’s item is to be regarded as the main item, it shall be deemed agreed that the Customer transfers proportionate (co-)ownership to the Supplier and keeps the (co-)ownership thus created in safe custody for the Supplier. If the acquisition of (co-)ownership is legally prevented, the Purchaser shall assign his claim for compensation to the Supplier as a substitute.
- In order to secure the claims against the Purchaser, the Purchaser shall also assign to the Supplier such claims which accrue to it against a third party as a result of the combination of the reserved goods with real property; the Supplier shall accept such assignment. The Supplier shall be entitled to demand appropriate securities for the proper fulfilment of the Purchaser’s obligations. The Supplier undertakes to release the securities to which he is entitled at the Purchaser’s request insofar as their value exceeds the claims to be secured by more than 20%.
- The delivered goods may neither be pledged nor transferred by way of security without consent. In the event of access by third parties to the goods subject to retention of title, the customer shall point out the ownership on this side, inform the supplier immediately and provide all assistance necessary to safeguard the rights. Insofar as the third party is not in a position or obliged to reimburse the court and out-of-court costs incurred thereby, the Purchaser shall indemnify the Supplier against such costs.
- In the event of breach of contract on the part of the customer and credit unworthiness – in particular default in payment – immediate segregation may be demanded. The Supplier shall be entitled to take back the delivery item and the Purchaser shall be obliged to surrender it. The Purchaser shall grant the Supplier or its agents access for collection and removal.
- An application for the opening of insolvency proceedings against the Customer’s assets shall entitle the Customer to withdraw from the contract and to demand the immediate return of the delivery item.
- If the delivery item cannot be used by the Purchaser in accordance with the contract through the fault of the Supplier as a result of omitted or faulty execution, proposals and consultations made before or after conclusion of the contract or as a result of a breach of other contractual ancillary obligations, the provisions of Sections VI I. and IX. 2 shall apply accordingly to the exclusion of further claims by the Purchaser.
- The Supplier shall only be liable – for whatever legal reasons – for damage which has not occurred to the delivery item itself
a) in the case of intent, culpable injury to life, limb or health,
b) in the case of defects which were fraudulently concealed or the absence of which was guaranteed,
c) in the event of defects in the delivery item, insofar as liability is assumed under the Product Liability Act for personal injury or property damage to privately used items,
d) in the event of gross negligence on the part of the executive bodies or executive employees, and
e) in case of culpable violation of essential contractual obligations. Liability for the negligent breach of material contractual obligations and gross negligence on the part of vicarious agents shall be limited to typical and reasonably foreseeable damage. There shall be no obligation to pay compensation for slightly negligent breaches of duty by legal representatives and vicarious agents.
- Further claims are excluded.
X. Statute of limitations
All claims of the customer – on whatever legal grounds – shall become statute-barred after 12 months. If the purchased item is used in multi-shift operation, the limitation period for claims based on defects shall be shortened accordingly. The statutory limitation periods shall apply to claims for damages in accordance with Section IX. 2 a – e.
XI. Use of software
- Insofar as software is included in the scope of delivery, the customer shall be granted the non-exclusive right to use such software. Use on more than one system is prohibited. The customer may only copy, revise, translate or convert the software from the object code to the source code to the extent provided for by law. The Purchaser shall not remove or alter any manufacturer’s specifications without the Supplier’s prior express consent.
- All other rights to the software and the documentation including copies shall remain with the supplier or the software supplier. Sublicensing is not permitted.
XII. Place of performance, place of jurisdiction, applicable law
- Place of performance for all obligations arising from the contractual relationship is the registered office of the supplier.
- The place of jurisdiction shall be the Supplier’s place of business if the Purchaser is a merchant, a legal entity under public law or a special fund under public law or has no general place of jurisdiction in the Federal Republic of Germany. However, the Supplier shall also be entitled to bring an action at the Purchaser’s place of business.
- All legal relationships between the Supplier and the Purchaser shall be governed exclusively by the law of the Federal Republic of Germany applicable to legal relationships between domestic parties to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
- In the case of foreign business transactions, the application of §§ 305 – 310 BGB (German Civil Code) is additionally excluded.
XIII. Final provisions
- The possible invalidity of individual provisions shall not affect the validity of the remaining provisions. An ineffective provision shall be replaced by a provision that comes closest to the economic purpose of the ineffective provision in a legally permissible manner.
- Oral collateral agreements do not exist. Amendments and supplements must be made in writing; this also applies to the written form clause itself.
- Personal data of the customer will be collected, processed and stored for the purpose of contract execution.