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. The Supplies are free from Defects if upon the passing of the risk they comply with the subjective requirements, the objective requirements
and the installation requirements pursuant to Sec. 434 German Civil Code (“Bürgerliches Gesetzbuch”). 2 If the parties have agreed on
the quality of the Supplies (“Beschaffenheitsvereinbarung”), the question whether the Supplies meet the objective requirements shall be
determined exclusively by such agreement. 3 Sentence 2 shall not apply if the last contract in the supply chain is a sale of consumer goods.
2. 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.
3. Claims for repair or replacement are subject to a statute of limitations of 24 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), and Sec. 634a para. 1 No. 2 (defects of
a building) German Civil Code (“Bürgerliches Gesetzbuch”),
- in the case of intent,
- in the case of fraudulent concealment of the Defect or
- non-compliance with guaranteed characteristic (“Beschaffenheitsgarantie”).
Claims for the reimbursement of expenses on the part of the Purchaser in accordance with Sec. 445a BGB (entrepreneur’s right of recourse)
shall likewise be subject to a statute of limitations of 24 months from the start of the statutory statute of limitations, provided the last contract
in the supply chain is not a sale of consumer goods.
4. The legal provisions regarding suspension of the statute of limitations (“Ablaufhemmung”, “Hemmung”) and recommencement of
limitation periods shall be unaffected. The suspension of the statute of limitations according to Sec. 445b para. 2 BGB (limitation of right
of recourse) shall in any case end no later than 5 years after the date on which the Supplier delivered the concerned item to the seller. This
shall not apply if the last contract in the supply chain is a sale of consumer goods or in cases that are according to No. 3 Sentence 2 above.
5. Notifications of Defect by the Purchaser shall be given in written form without undue delay.
6. In the case of claims for Defects, the Purchaser may withhold payments to an amount that is in a reasonable proportion to the Defect.
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.
7. The Supplier shall be given the opportunity to repair or to replace the defective good (“Nacherfüllung”) within a reasonable period of
time.
8. 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.
9. 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, installation/ removal,
or repair work carried out by the Purchaser or third parties and the consequences thereof are likewise excluded.
10. The Purchaser shall have no claim with respect to expenses incurred in the course of supplementary performance, 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. This applies accordingly to claims for the reimbursement of
expenses on the part of the Purchaser in accordance with Sec. 445a BGB (entrepreneur’s right of recourse), provided the last contract in
the supply chain is not a sale of consumer goods.
11. The Purchaser’s right of recourse against the Supplier pursuant Sec. 445a BGB (entrepreneur’s right of recourse) 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.
12. 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.
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