xiX - Technical Manual Version 1.3
119
3. Prior to assembly or erection, the materials and equipment necessary for the work to start must be available on the site of
assembly or erection and any preparatory work must have advanced to such a degree that assembly or erection can be started as
agreed and carried out without interruption. Access roads and the site of assembly or erection must be level and clear.
4. If assembly, erection or commissioning is delayed due to circumstances for which the Supplier is not responsible, the
Purchaser shall bear the reasonable costs incurred for idle times and any additional traveling expenditure of the Supplier or the
erection personnel.
5. The Purchaser shall attest to the hours worked by the erection personnel towards the Supplier at weekly intervals and the
Purchaser shall immediately confirm in written form if assembly, erection or commissioning has been completed.
6. If, after completion, the Supplier demands acceptance of the Supplies, the Purchaser shall comply therewith within a period of
two weeks. The same consequences as upon acceptance arise if and when the Purchaser lets the two week period expire or the
Supplies are put to use after completion of agreed test phases, if any.
Article VII: Receiving Supplies
The Purchaser shall not refuse to receive Supplies due to minor defects.
Article VIII: Defects as to Quality
The Supplier shall be liable for defects as to quality ("Sachmängel", hereinafter referred to as "Defects",) as follows:
1. Defective parts or defective services shall be, at the Supplier's discretion, repaired, replaced or provided again free of charge,
provided that the reason for the Defect had already existed at the time when the risk passed.
2. Claims for repair or replacement are subject to a statute of limitations of 12 months calculated from the start of the statutory
statute of limitations; the same shall apply mutatis mutandis in the case of rescission and reduction. This shall not apply where
longer periods are prescribed by law according to Sec. 438 para. 1 No. 2 (buildings and things used for a building), Sec. 479
para. 1 (right of recourse), and Sec. 634a para. 1 No. 2 (defects of a building) German Civil Code ("Bürgerliches Gesetzbuch"), in
the case of intent, fraudulent concealment of the Defect or non-compliance with guaranteed characteristics
(“Beschaffenheitsgarantie”). The legal provisions regarding suspension of the statute of limitations ("Ablaufhemmung",
"Hemmung") and recommencement of limitation periods shall be unaffected.
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 subjectmatter 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.
