proceedings is made and its ability to pay is not otherwise impaired However if this is the case we can demand that the Buyer gives us details of the claims assigned and the debtors supplies all the information necessary for collection hands over the relevant documents and informs the debtors third parties of the assignment d If the realisable value of the securities exceeds our claims by more than 10 upon request from the Buyer we shall release securities at our choice 7 Claims for defect 1 Save as otherwise provided below the Buyer s rights in the event of defects of quality and legal imperfections in title including wrong and short shipments and incorrect installation or defective installation instructions shall be governed by the provisions of law The special legal provisions in the case of ultimate delivery of the goods to a consumer suppliers recourse according to Sections 478 479 of the German Civil Code shall be unaffected in all cases 2 The primary basis of our liability for defects shall be the agreement made concerning the quality of the goods All product descriptions subject of the individual contract or publicly announced descriptions from us especially descriptions from our website or catalogues shall be deemed part of the agreement concerning the quality of the goods 3 In the absence of any quality agreement the existence or non existence of a defect shall be assessed according to the statutory provision Section 434 1 paragraphs 2 and 3 of the German Civil Code We shall not be held liable however for any public statements by the manufacturer or other third parties e g advertising messages 4 The Buyer s warranty claims presuppose him to have fulfilled his statutory duties of examination and notification Sections 377 and 381 of the German Commercial Code Any defect discovered during examination or later shall be notified to us without delay and in writing Irrespective of the abovementioned duties of examination and notification the Buyer shall notify obvious defects including wrong and short delivery within 2 business days from delivery the time shall be deemed observed if the notification is sent in time Notification must be given in writing If the Buyer fails to notify defects as stipulated above our liability for defects not notified shall be excluded 5 In case the delivered item is faulty the Buyer may demand either repair of the fault rectification or delivery of a flawless item replacement as he chooses Our right to refuse subsequent performance according to statutory law shall remain unaffected 6 We are entitled to make due subsequent performance conditional upon the Buyer s paying the purchase price due The Buyer shall however be entitled to withhold an appropriate part of the purchase price in proportion to the defect 7 The Buyer shall allow us the necessary time and opportunity for due subsequent performance and shall in particular hand over the goods concerned for inspection In the case of replacement the Buyer shall return the defective item to us in accordance with the statutory provisions Subsequent performance does not include assembling of product if we were not obliged to assemble products to begin with 8 Should a fault actually exist then we shall bear the expenses incurred for the purposes of inspection and repair specifically the costs of transportation labour and materials not including assembly and disassembly However should a Buyer demand for repair be proven unjustified then we can demand the incurred costs be reimbursed by the Buyer This shall not apply in case the lack of justification for repair was undetectable to the Buyer 9 In urgent cases e g if operating safety is jeopardised or to avert dispropor tionate damage the Buyer shall be entitled to remedy the defect himself and demand reimbursement by us of the objectively necessary expenses incurred We shall be advised without delay if possible beforehand of self remedying of defects The right of self remedy shall not apply if we would have been entitled to refuse corresponding subsequent performance in accordance with the statutory provisions 10 If subsequent performance is unsuccessful or a deadline to be set by the Buyer for subsequent performance has elapsed without result or may be dispensed with according to the statutory provisions the Buyer may withdraw from the contract of sale or diminish the purchase price No right of withdrawal applies in the case of a minor defect 11 The Buyer shall be entitled to claim compensation or reimbursement of expenses incurred in vain only as provided in Section 8 otherwise such claims shall be excluded 12 For products going through a printing process the Buyer shall be obligated to diligently examine and make appropriate corrrections of the template submitted to him and sign the print approval In case the print meets the requirements of the confirmed template a defect of the print shall be excluded 13 In case of custom made goods production conditions can result in overdelivery or underdelivery of as much as 10 The purchase price will be amended respectively 14 Tolerances in quantity weight or dimensions inevitably resulting from the production process and customary to this line of business are reserved The same applies to tolerances regarding the cutting of products 8 Other liability 1 Save as otherwise provided in these GTCs including the provisions below in case of breach of contractual and noncontractual duties we shall be liable in accordance with the statutory provisions applicable 2 We shall be liable to compensate irrespective of legal ground in the event of intent and gross negligence Save for statutory provisions stipulating lesser degrees of liability in case of ordinary negligence we shall be liable only a for damage due to injury to life limb or health b for damage due to breach of an essential contractual duty an obligation that has to be fulfilled to enable the contract to be duly performed and on the satisfaction of which the other party regularly relies and may rely in this case our liability shall be limited to compensation for the foreseeable damage typically occurring 3 The limitations of liability according to Section 8 paragraph 2 shall also apply with regard to our legal representatives staff members or vicarious agents The limitations shall not apply if we or one of the latter conceal s a defect with intent to deceive or if we have warranted the quality of the goods 4 The Buyer may withdraw or cancel on the grounds of a breach of duty that is not a defect only if we are responsible for the breach of duty The Buyer s free right of cancellation in particular in accordance with Sections 651 and 649 of the German Civil Code is excluded Otherwise the statutory requirements and legal consequences shall apply 9 Statute of limitation 1 Section 438 1 paragraph 3 of the German Civil Code notwithstanding the general period of limitation for claims based on defects of quality and legal imperfections in title shall be one year from delivery If acceptance has been agreed the limitation period commences at acceptance 2 The aforementioned periods of barring of purchase law shall also apply to contractual and extracontractual claims to damages of the Buyer based on a defect in the commodities unless application of regular statutory barring by limitation 195 199 German Civil Code would lead to a shorter barring in the individual case The periods of barring of the Product Liability Act shall remain unaffected in any case Apart from this the statutory periods of barring shall exclusively apply to claims to damages of the Buyer pursuant to Section 8 1 and 2 a of the present Terms and Conditions of Sale 10 Choice of Law place of jurisdiction 1 These Conditions and all legal relations between us and the Buyer shall be governed by the law of the Federal Republic of Germany excluding all international and supranational contractual legal systems in particular the UN Convention on Contracts for the International Sale of Goods AGB A G B Tr ad in g Te rm s 47

Vorschau Folia Neuheitenkatalog 2019 Seite 49
Hinweis: Dies ist eine maschinenlesbare No-Flash Ansicht.
Klicken Sie hier um zur Online-Version zu gelangen.