xiB & xiB-64 - Technical Manual Version 1.06
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3. Notifications of Defect by the Purchaser shall be given in written form without undue delay.
4. In the case of notification of a Defect, the Purchaser may withhold payments to an amount that is in a reasonable proportion to
the Defect. The Purchaser, however, may withhold payments only if the subject-matter of the notification of the Defect involved is
justified and incontestable. The Purchaser has no right to withhold payments to the extent that its claim of a Defect is time-
barred. Unjustified notifications of Defect shall entitle the Supplier to demand reimbursement of its expenses by the Purchaser.
5. The Supplier shall be given the opportunity to repair or to replace the defective good ("Nacherfüllung") within a reasonable
period of time.
6. If repair or replacement is unsuccessful, the Purchaser is entitled to rescind the contract or reduce the remuneration; any
claims for damages the Purchaser may have according to No. 10 shall be unaffected.
7. There shall be no claims based on Defect in cases of insignificant deviations from the agreed quality, of only minor impairment
of usability, of natural wear and tear, or damage arising after the passing of risk from faulty or negligent handling, excessive
strain, unsuitable equipment, defective civil works, inappropriate foundation soil, or claims based on particular external influences
not assumed under the contract, or from non-reproducible software errors. Claims based on defects attributable to improper
modifications or repair work carried out by the Purchaser or third parties and the consequences thereof are likewise excluded.
8. The Purchaser shall have no claim with respect to expenses incurred in the course of supplementary performance, including
costs of travel, transport, labor, and material, to the extent that expenses are increased because the subject matter of the
Supplies has subsequently been brought to another location than the Purchaser's branch office, unless doing so complies with
the normal use of the Supplies.
9. The Purchaser's right of recourse against the Supplier pursuant to Sec. 478 BGB is limited to cases where the Purchaser has
not concluded an agreement with its customers exceeding the scope of the statutory provisions governing claims based on
Defects. Moreover, No. 8 above shall apply mutatis mutandis to the scope of the right of recourse the Purchaser has against the
Supplier pursuant to Sec. 478 para. 2 BGB.
10. The Purchaser shall have no claim for damages based on Defects. This shall not apply to the extent that a Defect has been
fraudulently concealed, the guaranteed characteristics are not complied with, in the case of loss of life, bodily injury or damage to
health, and/or intentionally or grossly negligent breach of contract on the part of the Supplier. The above provisions do not imply a
change in the burden of proof to the detriment of the Purchaser. Any other or additional claims of the Purchaser exceeding the
claims provided for in this Article VIII, based on a Defect, are excluded.
Article IX: Industrial Property Rights and Copyrights; Defects in Title
1. Unless otherwise agreed, the Supplier shall provide the Supplies free from third parties' industrial property rights and
copyrights (hereinafter referred to as "IPR") with respect to the country of the place of delivery only. If a third party asserts a
justified claim against the Purchaser based on an infringement of an IPR by the Supplies made by the Supplier and used in
conformity with the contract, the Supplier shall be liable to the Purchaser within the time period stipulated in Article VIII No. 2 as
follows:
(a) The Supplier shall choose whether to acquire, at its own expense, the right to use the IPR with respect to the Supplies
concerned or whether to modify the Supplies such that they no longer infringe the IPR or replace them. If this would be impossible
for the Supplier under reasonable conditions, the Purchaser may rescind the contract or reduce the remuneration pursuant to the
applicable statutory provisions;
(b) The Supplier's liability to pay damages is governed by Article XII;
(c) The above obligations of the Supplier shall apply only if the Purchaser (i) immediately notifies the Supplier of any such claim
asserted by the third party in written form, (ii) does not concede the existence of an infringement and (iii) leaves any protective
measures and settlement negotiations to the Supplier's discretion. If the Purchaser stops using the Supplies in order to reduce
the damage or for other good reason, it shall be obliged to point out to the third party that no acknowledgement of the alleged
infringement may be inferred from the fact that the use has been discontinued.
2. Claims of the Purchaser shall be excluded if it is responsible for the infringement of an IPR.
3. Claims of the Purchaser are also excluded if the infringement of the IPR is caused by specifications made by the Purchaser, by
a type of use not foreseeable by the Supplier or by the Supplies being modified by the Purchaser or being used together with
products not provided by the Supplier.
4. In addition, with respect to claims by the Purchaser pursuant to No. 1 a) above, Article VIII Nos. 4, 5, and 9 shall apply mutatis
mutandis in the event of an infringement of an IPR.
5. Where other defects in title occur, Article VIII shall apply mutatis mutandis.
6. Any other claims of the Purchaser against the Supplier or its agents or any such claims exceeding the claims provided for in
this Article IX, based on a defect in title, are excluded.
Article X: Conditional Performance
